4933    I 

59  *B 


CO 


PUBLIC  REGULATION  OF 
THE  RATE  OF  WAGES 


SWENSON 


PUBLIC  REGULATION  OF 
THE  RATE  OF  WAGES 


BY 
RINEHART  J.  SWENSON,  M.  A. 


THE    H.   W.    WILSON    COMPANY 

WHITE  PLAINS,  N.  Y.,  AND  NEW  YORK  CITY 

1917 


PREFACE 

Governmental  regulation  of  rates  of  wages  is 
a  topic  of  increasing  importance.  There  is  a 
great  deal  of  literature  on  the  subject,  much  of 
which  is  rather  bewildering  to  the  student.  An 
attempt  has  been  made  here  to  give  a  fairly 
complete  historical  resume,  and  the  logical  de- 
ductions arising  therefrom  with  full  references 
to  authorities. 

Acknowledgments  are  due  to  the  kindly  and 
valuable  counsel  given  by  Professors  William  A. 
Schaper,  Jeremiah  S.  Young  and  Cephas  D. 
Allin,  of  the  Department  of  Political  Science  in 
the  University  of  Minnesota. 

RlNEHART    J.    SWENSON 

September,  1916 


382070 


TABLE  OF  CONTENTS 

Bibliography   9 

Laws  Cited 1 1 

Cases  Cited  12 

Chapter  I.     Historical  Development  of  Public  Regulation  of 

the  Rate  of  Wages 13 

In  England 14 

In  Australasia  19 

In  the  United  States 21 

Chapter  II.     The  Constitutional  Aspect  of  Minimum  Wage 

Legislation  in  the  United  States 23 

The  Police  Power 23 

Health  and  Safety 24 

Morals  31 

Protection  against  Oppression  35 

The  Police  Power  and  the  Fourteenth  Amendment 35 

Freedom  of  Contract 36 

Class  Legislation   38 

Delegation  of  Legislative  Power  to  the  Commission 40 

Legislative  Discretion  and  Judicial  Supervision 43 

Chapter  III.     The  Test  of  Experience 46 

Practicability   46 

Effects  on  Industry 47 

Effects  on  Wages 49 

Effects  on  Efficiency  and  on  Industrial  Peace 53 

Conclusion 56 

Chapter  IV.    A  Resume 57 

Appendix.    An  Analysis  of  Modern  Minimum  Wage  Legis- 
lation.   Foreign  Legislation. 

New  Zealand :  The  Industrial  Conciliation  and  Arbitra- 
tion Act.  1894-1901 62 

New  South  Wales  64 

Victoria :  Special  Boards  Act,  1896 64 

Great  Britain :  Trade  Boards  Act,  1909 66 

Coal  Mines  (Minimum  Wage)  Act,  1912 68 

The  Victorian  and  the  British  Legislation 69 


CONTENTS 

American  Legislation. 

History 69 

Titles 70 

Personnel :  Appointment,  Tenure,  Compensation 70 

Industries  and  Employers  Affected 70 

Powers  and  Duties  of  Commissions:  Investigation, 

Determinations   71 

Methods  and  Principles  of  Wage  Determinations. ...  72 

Penalties  73 

Court  Review 73 

Advisory  Boards   74 


BIBLIOGRAPHY 

BOOKS,  PAMPHLETS,  ETC. 

Andrews,  Irene  Osgood.  Minimum  Wage  Legislation.  Lyon. 
Albany,  1915. 

Australia.  Official  Year  Book  for  the  Commonwealth  of  Aus- 
tralia. 1901-1912. 

Australia.  Official  Year  Book  for  the  Commonwealth  of  Aus- 
tralia. 1913. 

Brandeis,  Louis,  and  Josephine  Goldmark.  Appendix  to  Brief 
Filed  on  Behalf  of  Respondents  in  Stettler  vs.  O'Hara.  Su- 
preme Court  of  Oregon.  October  Term,  1913. 

Brown,  Rome.  G.     The  Minimum  Wage. 

Butler,  Elizabeth  B.  Women  and  the  Trades.  The  Pittsburg 
Survey.  Russell  Sage  Foundation  Publication.  N.  Y.  1909. 

Chicago.  Social  Evil  in  Chicago.  Report  of  Vice  Commission. 
1911. 

Clark,  Victor  S.  The  Labor  Movement  in  Australasia.  H.  Holt 
and  Company.  N.  Y.  1906. 

Commons,  John  R.  Proposed  Minimum  Wage  Law  for  Wis- 
consin. Wisconsin  Consumers'  League,  Madison.  1911. 

Connecticut.  Report  of  Special  Commission  to  Investigate  the 
Conditions  of  Wage  Earning  Women  and  Minors  in  the 
State  of  Connecticut.  1913. 

Federation  of  Labor.  Official  Report  of  the  Executive  Com- 
mittee to  the  33d  Annual  Convention.  1913. 

Freund,  Ernest.  The  Police  Power.  Callaghan  &  Company. 
Chicago.  1904. 

Hayes,  Carlton.  British  Social  Politics.  Ginn  &  Company. 
N.  Y.  1913. 

Howell,  George.  Handy-book  of  Labor  Laws.  Macmillan. 
London.  1895. 

Hutchins,  B.  L.,  and  A.  Harrison.  A  History  of  Factory  Legis- 
lation. P.  S.  King  &  Son.  Westminster.  1903. 

Kansas  City.  Report  on  Wage  Earning  Women  in  Kansas  City. 
Board  of  Public  Welfare  of  Bureau  of  Labor  Statistics.  1913. 

Lloyd,  Henry  D.  Newest  England.  Doubleday,  Page  &  Com- 
pany. N.  Y.  1900. 

Massachusetts.  Report  of  the  Commission  on  Minimum  Wage 
Boards.  Boston.  1912. 

Mill,  John  Stuart.  Principles  of  Political  Economy.  C.  C. 
Little  and  J.  Brown.  Boston. 

National  Civic  Federation.  Sixteenth  annual  meeting,  Washing- 
ton, D.  C,  January  17,  1916.  Report  by  A.  J.  Porter. 


io  BIBLIOGRAPHY 

New  Zealand.     Department  of  Labor.    Annual  Report.    1909. 
Oregon.     Report  of  Social  Survey  Committee  of  the  Consumer's 

League  of  Oregon.  1913. 
Reely,    Mary   K.     Selected  Articles    on   Minimum    Wage.     The 

H.  W.  Wilson  Company,  White  Plains,  N.  Y.  1916. 
Reeves,  William  Pember.     State  Experiments  in  Australia  and 

New  Zealand.  Vol.  II.     Grant  Richards,  London.  1902. 
Rogers,  Thorold.  Work  and  Wages.  G.  P.  Putnam's  Sons,  N.  Y. 

1884. 
Rowntree,  B.  S.     Poverty — A  Study  of  Town  Life.     Macmillan 

&  Company.    London.  1901. 
Snowden,    Philip.     The    Living    Wage.     Hodder    &    Stoughton. 

London.  1913. 
United  States.     Bureau  of  Labor.  Bulletin  57.    Labor  Conditions 

in  Australia.    Victor  S.  Clark. 
United  States.     Bureau  of  Labor.  Bulletin  49.  Labor  Conditions 

in  New  Zealand.    Victor  S.  Clark. 
United  States.    Bulletin  of  the  Bureau  of  Labor  Statistics,  Whole 

Number  167. 

United  States.     Senate  Document  No.  645,  6ist  Congress.  Sec- 
ond session,  1911.     Federal  Report  on  Conditions  of  Women 

and  Child  Wage-Earners  in  the  United   States  Government 

Printing  Office.     Washington.  1911. 
Victoria.     Chief  Inspector  of  Factories.     Annual  Reports,  1909, 

1910,  1913. 
Washington.     Industrial    Welfare    Commission.     Report,    1914. 

Olympia.  1914. 
Wise,  B.  R.     Commonwealth  of  Australia.  Little  Brown  &  Com- 


Wi 


pany.     Boston.  1909. 

Ison,  Woodrow,     Inaugural  Address,  March  4,  1913. 


MAGAZINE  ARTICLES. 


American    Economic    Review.    March    1912.     Legal    Minimum 

Wage  in  the  United  States.     A.  N.  Holcombe. 
American  Labor  Legislation  Review.     Theory  of  the  Minimum 

Wage.     H.  R.  Seager.     February,  1913. 
American  Political  Science  Review.  February,   1914.    Individual 

and  the  State.     Westel  Woodbury  Willoughby. 
American  Political  Science  Review.   February  1914.     Philosophy 

of  Labor  legislation.     William  F.  Willoughby. 
Journal    of    Political    economy.     University    of    Chicago    Press. 

December,    1912.    Economic    Theory   of    a   Legal    Minimum 

Wage.     Sidney  Wrebb. 
Literary  Digest.     March  22,   1912. 
Outlook.     October  26,  1901. 
Survey.    February  6,    1915.    Where  Life  Is   More   than   Meat. 

M.  B.  Hammond. 

Survey.  29:659;  30:736;  31:50  February,  1915. 
Survey,    February  6,   1915.     State  and  the  Minimum  Wage  in 

England.    John  A.  Hobson. 


LAWS  CITED1 

Factory  legislation: 

5  Eliz.  cap.  4. 
43.  Eliz.  cap.  3. 
Will  III.  8  &  9,  cap.  30. 

59  Geo.  III.  cap.  66.  An  Act  for  the  Regulation  of  Cotton 
Mills  and  Factories. 

7  &  8  Viet.  cap.  15.     An  Act  to  Amend  the  Laws  relating  to 
Labor  in  Factories. 

34  &  35  Viet.  ch.  31.  1871.  Trade  Unions  Act. 

38  &  39  Viet.  ch.  86.  1875.  Conspiracy  and  Protection  of  Prop- 
erty Act. 

39  &  40  Viet.  ch.  22.  1876.    Trade  Unions  Act. 

314  Wm.  IV.  cap.  103.  An  Act  to  Regulate  the  Labor  of 
Children  and  Young  Persons  in  the  Mills  and  Factories  of 
the  United  Kingdom. 

8  &  9  Viet.  cap.  29.   An  Act  to  Limit  the  Hours  of  Labor  of 
Young  Persons  and  Females  in  Factories. 

30  &  31  Viet.  cap.  103.     The  Factory  Acts  Extension  Act. 

30  &  31  Viet.  cap.  146.     The  Workshop  Regulation  Act. 

41  &  42  Viet.  cap.  16.    An    Act    to    Consolidate    and    Amend 

the  Law  Relating  to  Factories  and  Workshops. 
6  Edw.  VII.  ch.  58,  Dec.  21,  1906. 

9  Edw.  VII.  ch.  7.  Sept.  20,  1909. 
9  Geo.  Ill  cap.  83. 

The  Minimum  Wage  Laws  : 
New  Zealand  :  The  Industrial  Concilation  and  Arbitration  Act, 

1894-1901. 

Victoria;  Special  Boards  Act,  1896. 
Great  Britain  :  Trade  Boards  Act,  1909. 

Coal  Mines  (Minimum  Wage)  Act,  1912. 
Arkansas  :  C  291,  Laws  1915. 
California:  C.  324,  Laws  1913. 
Colorado:  C.  no,  Laws  1913. 
Kansas:  C  275,  Laws  1915. 
Massachusetts:  C.  706,  Laws  1912:  Am'd  C's.  33,  673,   Laws 


IQI3- 

Minnesota:  C.  547,  Laws  1913. 
Nebraska:  C.  211,  Laws  1913. 
Oregon:  C.  62,  Laws  1913. 
Utah:  C.  63,  Laws  1913. 
Washington  :  C.  174,  Laws  1913. 
Wisconsin:  C.  712,  Laws  1913. 


1  B.  L.   Hutchins   and  A.   Harrison,  A  History  of  Factory  Legislation 
Appendix  G. 


CASES  CITED. 

Barbier  v.  Connolly,  113  U.  S.,  31. 

Briscoe  v.  Bank  of  Kentucky,  n  Pet.,  257. 

Blue  v.  Beach,  155  Ind.,  121. 

Cincinnati  v.  Conners,  I  Ohio  St.,  77-83. 

Chicago  Co.  v.  Iowa,  94  U.  S.,  163. 

Chicago  B.  O.  Quincy  R.  R.  Co.  v.  McGuire,  219  U.  S.,  549. 

Dunlop  v.  U.  S.,  173  U.  S.,  65, 

Dowling  v.  Lancashire  Co.,  31  L.  R.  A.,  112. 

Frisbie  v.  U.  S.,  157  U.  S.,  165. 

Gas  Light  Co.  v.  Light  Co.,  115  U.  S.,  650. 

Holden  v.  Hardy,  169  U.  S.,  397. 

Jacobson  v.  Massachusetts,  25  Sup.  Ct.  Rep.  358. 

Kansas  v.  Colorado,  185  U.  S.,  125. 

Louisville  Co.  v.  Garret,  34  Sup.  Ct.  Rep.,  48. 

Missouri  v.  Illinois,  180  U.  S.,  208. 

Mormon  Church  v.  The  United  States,  136  U.  S.,  i. 

Mugler  v.  Kansas,  123  U.  S.,  223. 

Muller  v.  Oregon,  208  U.  S.,  412. 

McCulloch  v.  Maryland,  4  Wh.,  415. 

McAunich  v.  R.  R.  Co.,  20  la.,  343. 

McLean  v.  Arkansas,  211  U.  S.  547. 

Mpers  v.  Reading,  21  Pa.,  202. 

Minneapolis  Co.  v.  Railroad  Commission,  116  N.  W.,  905. 

Noble  State  Bank  v.  Haskell,  219  U.  S.,  104. 

Otis  v.  Parker,  187  U.  S.,  606. 

State  v.  Corvallis  Co.,  59  Oregon,  450. 

State  v.  C.  M.  &  St.  Paul  Ry  Co.,  38  Minn.,  295. 

State  v.  Muller,  48  Oregon,  252. 

Stone  v.  Mississippi,  101  U.  S.,  816. 

Slaughter  House  Cases,  16  Wall.,  36  and  in  U.  S.,  746. 

Stettler  v.  O'Hara,  Supreme  Court  of  Oregon,  March  17,  1914. 

Union  Co.  v.  Landing  Co.,  in  U.  S.,  751. 

Union  Co.  v.  United  States,  27  Sup.  Ct.  Rep.,  367. 

United  States  v.  Fisher,  2  Cr.,  358. 

Watkins  v.  Holman,  16  Pet.,  60. 


CHAPTER  I. 

HISTORICAL  DEVELOPMENT  OF  PUBLIC 
REGULATION  OF  THE  RATE  OF  WAGES 

"Law  will  be  forced  to  adapt  itself  to  new  conditions  of 
society,  and  particularly  to  new  relations  between  employers  and 
employees  as  they  arise."1  In  other  words,  law  is  a  progressive 
science  and  adaptable  to  changing  conditions.  This  is  the  in- 
telligent principle  of  expediency  and  humanity  underlying  all  our 
labor  legislation,  enacted  in  the  mutual  interest  of  the  employer 
and  the  employed,  and  of  society  as  the  ultimate  benefactor. 
The  expression  of  the  principle  as  a  legal  dictum  is  a  compara- 
tively recent  development,  but  its  practical  influence  can  be  traced 
back  more  than  a  century  in  the  history  of  the  English  speak- 
ing peoples,  to  the  year  1802  when  the  English  Parliament  passed 
the  first  of  a  series  of  Factory  Acts,  which  have  grown  to  em- 
brace a  large  field  of  remedial  legislation  in  the  interest  of  labor. 
One  of  the  latest,  and  perhaps  the  most  controverted,  extensions 
of  the  principle  of  the  Factory  Acts  has  been  the  establishment 
by  law  of  a  living  wage  for  certain  classes  of  employees,  or  for 
the  employees  in  certain  trades  and  industries.2  A  great  deal  of 
legal  and  historical  fiction  has  been  cited  by  those  who  oppose 
the  establishment  by  law  of  a  minimum  wage,  in  their  effort 
to  maintain  their  proposition  that  legal  regulation  of  the  rate 
of  wages  is  an  unwarranted  and  an  unprecedented  extension  of 
governmental  activity.  The  many  legal  and  economic  objections 
to  legislative  interference  with  the  payment  of  wages  will  be 
considered  later  and  in  their  proper  places;  it  is  necessary,  first 
of  all,  to  dispel,  if  possible,  the  popular  notion  that  minimum 
wage  legislation  is  a  radical  modern  experiment  without  histor- 
ical precedent.  A  brief  survey  of  the  history  of  labor  legislation 
in  England,  Australasia,  and  the  United  States — the  only  coun- 

1  Slaughter   House  cases,    16   Wallace,   97. 

2  "In  1802  there  was  enacted  the  first  of  the  long  list  of  industrial  and 
social  measures,  which  in  principle   are  the  same  as  the  demand  for  the 
Living  Wage,  p.  13.  ...     The  Living  Wage  is  the  inevitable  outcome,  and 
the  natural  complement,  of  the  industrial  and  social  legislation  of  the  lait 
hundred  years."   p.  24,  Philip  Snowdon,  "The  Living  Wage." 


14  PUBLIC   REGULATION   OF 

tries  that  have  enacted  minimum  wage  laws1 — will  bear  out  the 
earlier  statements  that  law  is  a  progressive  science,  and  that 
the  modern  minimum  wage  law  is  properly  an  extension  of  the 
English  Factory  Acts,  and,  therefore,  not  a  radical  departure 
from  the  established  practices  of  the  past  century. 


IN  ENGLAND 

The  legal  regulation  of  the  rate  of  wages  in  England  began 
in  1349  with  the  first  of  the  long  series  of  Statutes  of  Laborers. 
Since  August  of  the  preceding  year  the  island  had  suffered  se- 
verely from  a  visitation  of  the  Black  Death.  It  has  been  esti- 
mated that  probably  one-third  of  the  population  of  England 
perished  as  a  result  of  this  dreaded  visit.2  The  immediate  eco- 
nomic effects — a  dearth  of  labor,  an  excessive  enhancement  of 
wages,  and  a  serious  difficulty  in  gathering  the  harvest — were,  on 
the  face  of  them,  appallingly  ruinous;  but  in  truth,  the  Plague 
practically  emancipated  the  remaining  feudal  serfs  in  England 
and  inaugurated  a  golden  age  for  English  laborers,  for  during 
the  fifteenth,  and  the  first  quarter  of  the  sixteenth  centuries 
wages  rose  and  prices  fell  in  spite  of  the  frantic  efforts  of  the 
government  to  frustrate  by  statute  the  natural  operation  of  eco- 
nomic laws.  In  general,  the  effect  of  the  Plague  upon  labor 
was  to  decrease  the  supply,  increase  the  demand,  and  raise  the 
price  so  high  that  the  land  owners  were  forced  to  release  their 
tenants  from  their  feudal  obligations  in  order  to  induce  them 
to  remain  on  the  lands  and  to  cultivate  them.  In  consequence 
of  this  dearth  of  labor,  harvests  were  left  to  rot  in  the  fields 
and  cattle  and  sheep  to  roam  at  large.  The  King,  thereupon, 
issued  a  proclamation  directing  all  officers  that  no  higher  than 
customary  wages  should  be  paid,  under  penalty  of  amercement.* 
As  soon  as  Parliament  met,  this  proclamation  was  reduced  to 
the  form  of  a  statute — the  first  of  the  series  of  Statutes  of  La- 
borers that  remained  laws  until  the  days  of  Elizabeth.  Not  only 
were  wages  fixed  by  these  statutes,  but  laborers  were  forbidden 
to  combine  in  order  to  sell  their  services  collectively  on  the 
best  markets,  as  the  agricultural  laborers  did  after  the  Plague. 

1  France   enacted    a   minimum    wage    law    applicable     to     women     home 
workers  in   1913.     See  Appendix,  p.   i. 

2  Thorold  Rogers,  "Work  and  Wages,"  p.  223. 

3  Thorold  Rogers,  "Work  and  Wages,"  p.  227. 


THE   RATE   OF   WAGES  15 

This  was  the  beginning  of  formal  legal  regulation  of  wages  in 
England.  But  it  should  be  noted  here  that  this  was  not  the 
establishment  of  a  legal  minimum,  but  a  legal  maximum ;  it  was 
a  law  for  the  benefit  of  the  employer,  not  for  the  benefit  of  the 
employee.  Maximum  wages  were  fixed  by  law  until  1824.  In 
fact,  the  charge  has  been  made  that  between  1349  and  1824  there 
was  a  deliberate  conspiracy  between  the  government  and  those 
financially  interested  in  its  success,  to  rob,  by  law,  the  laborer 
of  the  advantage  he  had  gained  as  a  result  of  the  Plague,  to 
cheat  him  of  his  wages,  to  shackle  him  to  the  soil,  and  to  de- 
grade him  into  hopeless  penury.1  Whether  the  process  of  de- 
basement was  conscious  and  deliberate  or  merely  the  unfortunate 
result  of  mistaken  governmental  policies,  as  were  the  Poor  Laws 
of  Elizabeth,  is  not  important  in  this  connection;  it  is  sufficient 
to  point  out  that  a  long  series  of  governmental  acts,  beginning 
with  the  Statutes  of  Laborers  in  1349  and  ending,  perhaps, 
during  the  first  quarter  of  the  nineteenth  century,  had  this  de- 
moralizing effect,  and  our  modern  social  legislation  is  an 
attempt,  in  a  great  measure,  to  undo  these  mistakes  of  the  past. 

During  the  fifteenth  century  the  Statutes  of  Laborers  were 
openly  violated,  and,  in  truthy  they  had  little  economic  effect 
until  the  debased  currency  of  Henry  VIII2  and  Edward  VI 
came  to  their  assistance.8  When  labor  was  paid  for  in  depre- 
ciated money,  no  matter  how  high  the  wage,  it  is  easy  to  antici- 
pate the  result:  prices  rose  and  real  or  effective  wages  fell,  and 
the  present  labor  problem  of  England  emerged. 

As  if  to  follow  up  an  advantage  gained,  Henry  VIII  destroyed 
the  guilds  and  confiscated  their  property,  thus  taking  away  from 
the  laborer  his  one  source  of  assistance  in  times  of  difficulty, 
for  in  times  of  need  the  guilds  had  loaned  him  money  without 
interest,  had  apprenticed  his  son,  or  had  pensioned  his  widow.4 
Elizabeth  substituted  for  the  Statute  of  Laborers  a  similar  act, 
the  Statute  of  Apprenticeship,8  which  empowered  the  justices  in 
Quarter  Sessions  to  fix  the  rate  of  wages  in  husbandry  and  the 
handicraft  trades.  The  abasement  of  the  laborer  was  now  so 
complete  that  Elizabeth  found  it  necessary  to  adopt  palliatives 
to  mitigate  the  most  intolerable  conditions  of  the  worker's  life — 

1  Thorold  Rogers,  "Work  and  Wages,"  p.  398. 

»  Henry  put  out  his  first  debased  money  in  1543.  Elizabeth  restored  the 
old  standard  in  1560. 

3  Thorold  Rogers,  "Work  and  Wages,"  p.  342-346. 


'Ibid.,  p.  346-349. 
•  5  Ehz.,  cap.  4. 


16  PUBLIC   REGULATION    OF 

palliative  which,  in  the  opinion  of  Thorold  Rogers,  "were 
rendered  necessary  by  no  fault  of  his,  but  by  the  deliberate 
malignity  of  Governments  and  Parliaments.1  In  1601,  therefore, 
Elizabeth  caused  to  be  enacted  the  famous  Poor  Law2  of  that 
year,  the  first  law  to  supplement  wages  (for  that  is  what  it 
really  did)  by  taxation.  In  1697,  in  the  reign  of  William  III, 
the  law  of  Parochial  Settlement3  practically  finished  the  work 
of  debasement.  This  Act  required  a  laborer  moving  from  one 
parish  to  another  to  produce  security  that  he  would  not  be 
chargeable  to  the  parish  of  his  new  residence,  thus  practically 
annexing  him  to  the  parish  of  his  old  residence  and  making 
him  a  serf,  as  he  seldom  could  furnish  the  desired  security. 

The  general  principles  of  these  acts  remained  in  force  until 
1824,  when  the  most  objectionable  were  repealed,  thus  relaxing 
the  strangling  grip  that  law  had  first  placed  upon  the  throat 
of  labor  in  1349,  and  which  had  tightened  with  apparent  crim- 
inal intent  for  four  and  three  quarters  centuries.  However,  the 
period  of  constructive  labor  legislation  may  be  said  to  date  from 
the  Factory  Act  of  1802,  and,  strange  as  it  may  seem,  just  as 
the  Plague  in  1348  set  labor  free,  so  another  epidemic  in  the 
closing  years  of  the  eighteenth  century  was  destined  to  turn 
again  the  tide  in  labor's  favor  by  forcing  upon  a  reluctant  gov- 
ernment in  1802  the,  first  of  a  progressive  series  of  Factory 
Acts  regulating  the  hours  and  conditions  of  labor.  In  1784  an 
infectious  fever  broke  out  among  the  factory  children  in  Rad- 
cliffe,  due  to  the  intolerable  conditions  of  the  factories.*  In- 
vestigations were  made,  and  as  a  result  Sir  Robert  Peel  put 
through  Parliament  the  "Health  and  Morals  Apprentices  Act, 
1802,"  regulating  the  employment  of  apprentices  in  textile  mills 
and  factories.  In  1819  another  forward  step  was  taken  by  the 
passage  of  a  similar  act  applying  to  child  laborers  in  the  cotton 
or  textile  industry.5  Then  in  1824  and  1825  came  the  repeal  of 
the  Combination  Laws  and  the  Elizabethan  Quarter  Sessions 
assessment  of  wage  law,6  that  is,  repressive  legislation  was 
henceforth  discontinued,  but  it  is  to  be  noted  that  trade  unions 
were  first  legalized  in  the  seventies.1  As  it  was  no  longer  a 

1  Thorold  Rogers,  "Work  and  Wages,"  p.  398. 

3  43  Eliz.,  cap.  3. 

8  William  III,  8  &  9  cap.  30. 

4  B.  L.  Hutchins  and  A.  Harrison,  "A  History  of  Factory  Legislation," 
p.   7. 

6  59  Geo.  III.,  cap.  66.  An  Act  for  the  Regulation  of  Cotton  Mills  and 
Factories. 

8  Thorold  Rogers,  "Work  and  Wages,"  p.  438. 


THE   RATE   OF  WAGES  17 

criminal  offence  for  laborers  to  combine,  unions  sprang  up  in  the 
various  trades ;  and  as  legal  regulation  of  wages  was  also  dis- 
continued, the  unions,  through  collective  bargaining,  commenced 
the  modern  fight  for  a  living  wage. 

In  1833  the  Factory  Acts  were  extended  to  include  young 
persons.2  They  were  extended  to  any  "Cotton,  Woolen,  Worsted, 
Hemp,  Flax,  Tow,  Linen  or  Silk  Mill."  The  agitation  for  regu- 
lation then  turned  to  adults,  particularly  to  women,  and  the  act 
of  i8443  fixed  hours  of  young  persons  and  women  at  twelve 
hours  a  day,  and  required  the  owner  of  factories  to  fence  the 
gearings  and  shafts  for  the  employee's  protection.  In  1847  a 
ten  hour  law  for  "young  persons  and  females"  was  passed.*  An 
Act  of  i8675  extended  regulation  to  a  large  number  of  new  in- 
dustries such  as  iron  and  copper  foundries,  steel  works,  tobacco 
factories,  etc.  The  Workshops  Act  of  i8676  extended  the  regu- 
lation formerly  applicable  only  to  factories  to  workshops;  and 
the  consolidated.  Act  of  i8787  repealed  and  consolidated  the  two 
acts  of  1867. 

Thus,  "beginning  with  a  tentative  and  imperfect  measure  of 
control  intended  only  for  the  benefit  of  poor  law  apprentices 
for  whom  the  State  was  already  in  a  measure  responsible,  the 
government  has  been  itself  compelled  by  the  modest  precedent 
to  take  first  children,  then  young  persons,  then  women  under 
its  protection,  and  to  extend  the  operation  of  the  acts  to  one  in- 
dustry after  another  till  nearly  the  whole  field  of  manufacture 
has  been  covered."8 

From  1878  until  1006 — through  the  Liberal  government  of  Mr. 
Gladstone  and  the  Conservative  government  of  Mr.  Balfour — 
only  a  few  minor  acts  were  passed  to  conciliate  the  working 
classes;  but  in  the  election  of  1906  the  demands  of  labor  had 
become  so  strong  that  the  determining  issue  in  that  campaign 

lThe  Acts  that  legalized  trade  unions:  34  &  35  Viet.  ch.  31,  Trade 
Unions  act,  1871;  38  &  39  Vic.  ch.  86,  Conspiracy  and  Protection  of  Prop- 
erty Act,  1875;  39  &  40  Vic.  ch.  22,  Trade  Unions  Act,  1876.  See  Hayes, 
"British  Social  Politics,"  p.  87-101. 

2  3 14  Will  IV.  cap.   103,  An  Act  to  Regulate  the  Labor  of  children  and 
young  persons  in  the  mills  and  factories  of  the  United  Kingdom. 

3  7  &  8  Viet.,  cap.  15,  An  Act  to  Amend  the  Laws  Relating  to  Labor  in 
Factories. 

4  8  &  9  Viet.,  cap%  29,  An  Act  to  Limit  the  Hours  of  Labor  of  Young 
Persons  and  Females  in  Factories. 

8  30  &  31  Viet.,  cap.   103,  The  Factory  Acts  Extension  Act. 

8  30  &  31  Viet.,  cap.  146,  The  Workshops  Regulation  Act, 

T  41  &  42  Viet.,  cap.  16,  An  Act  to  Consolidate  and  Amend  the  Law 
relating  to  Factories  and  Workshops. 

8  B.  L.  Hutchins  and  A.  Harrison,  "A  History  of  Factory  Legislation," 
p.  231. 


i8  PUBLIC   REGULATION   OF 

was  social  legislation.  The  Liberal  Part}7,  under  the  leadership 
of  Sir  Henry  Campbell-Bannerman,  came  into  power,  pledged 
to  "a  policy  of  social  reconstruction  looking  toward  a  greater 
equality  of  wealth,  and  the  destruction  of  the  oppressive  monop- 
olies of  the  land  and  of  liquor."1  In  the  years  since  1896  the 
Liberal  Party  has  followed  a  consistent  program  of  social  re- 
form, abandoning  the  familiar  high  sounding  "laissez-faire" 
theories  of  individual  liberty.  The  right  and  duty  of  the  gov- 
ernment to  interfere  with  the  liberty  of  the  individual,  to  the 
extent  of  prescribing  the  conditions  and  terms  under  which  he 
shall  contract  for  and  employ  the  labor  of  another,  have  been 
asserted  in  no  uncertain  manner. 

In  1880  was  passed  the  first  and  rather  unsatisfactory  Em- 
ployers' Liability  Act,  making  liability  dependent  upon  negli- 
gence. This  was  superseded,  in  1897,  by  the  Workmen's  Com- 
pensation Act,  which  asserted,  rather  timidly,  it  is  true,  the  new 
doctrine  that  the  employer  must  be  held  personally  responsible 
for  the  risks  he  creates  for  his  employees,  limiting  its  application, 
however,  to  those  employers  who  were  engaged  in  the  most 
dangerous  employments  and  who  could  afford  to  pay.  This  Act 
was,  in  turn,  revised  in  1900,  and  made  to  extend  to  agricultural 
laborers  and  gardeners.  In  1906  a  new  and  liberal  Working- 
men's  Compensation  Act  was  passed.2  The  Act  of  1897  had  ex- 
cluded all  classes  of  workmen  not  expressly  included ;  the  Act 
of  1906  reversed  the  order  and  included  all  not  expressly  ex- 
cluded.3 This  was  a  sweeping  extension  of  the  law. 

In  1909  the  Labor  Exchanges  Act  was  enacted,  "An  Act  to 
provide  for  the  establishment  of  Labor  Exchanges  and  for 
other  purposes  incidental  thereto.4  Its  purpose  was  to  render 
assistance  to  the  unemployed.  In  that  same  year,  on  October 
2Oth,  Parliament  reversed  its  policy,  now  nearly  one  century  old, 
of  non-interference  directly  with  the  rate  of  wages,  and  passed 
the  Trade  Boards  Act,  providing  for  the  establishment  of  Trade 
Boards  for  certain  trades  in  which  sweating  was  prevalent. 

This  is  admittedly  but  an  imperfect  sketch  of  the  evolution  of 
the  English  Trade  Boards  Act,  or  Minimum  Wage  Law;  but 
enough  has  perhaps  been  said  to  establish  the  earlier  statement 
that  minimum  wage  legislation,  as  but  one  phase  of  legal  regula- 

1  Carlton  Hayes,  "British  Social  Politics."  p.  18. 
3  6  Edw.  VII,  ch.  58,  Dec.  21,  1906. 

3  Carlton   Hayes,     "British     Social     Politics,"     p.     22-23.     Parliamentary 
Debates,  Fourth  Series,  Vol.   154,  cal.  886.  Sqq. 
*9  Edw.  VII,  ch.  7,  Sept.  20,  1909. 


THE   RATE   OF   WAGES  19 

tion  of  employment,  is  an  old  legal  principle  adapted  to  present 
day  conditions.  We  have  seen  how  from  1349  until  1824  a  maxi- 
mum rate  of  wages  was  fixed  by  law  in  certain  industries ;  we 
have  seen  how  in  the  beginning  of  the  nineteenth  century 
the  attitude  of  the  government  towards  labor  changed,1  and  how 
the  subsequent  development  of  social  legislation  demonstrated 
the  proposition  that  law  is  a  progressive  science  and  adaptable 
to  changing  conditions.  That  the  law  has  moved  slowly  and  at 
times  with  unnecessary  caution,  it  would  be  difficult  to  contro- 
vert; but  the  progress  has  been  sure  if  not  swift,  and  he  who 
cannot  see  from  whence  and  whither  the  trail  leads  must  needs 
lack  the  gift  of  a  clear  vision.  Indeed  it  requires  no  appeal  to 
the  imagination  to  see  how  short  is  the  step  from  a  maximum  to 
a  minimum  rate ;  or  from  a  law  fixing  the  hours  of  labor,  or  an 
act  fixing  the  manner  of  payment  (Truck  Act),2  to  a  law  fixing 
the  rate  of  payment.  I-ndirectly,  too,  the  need  of  a  living  wage 
was  recognized  by  the  Poor  Laws ;  and  the  Allowance  System, 
which  was  implied  by  two  statutes  near  the  close  of  the  eigh- 
teenth century,3  virtually  provided  for  a  minimum  living  wage, 
since  "able-bodied  laborers  should  have  their  wages  supplemented 
by  allowances  from  the  overseer,  proportionate  to  the  number 
of  their  children  or  the  general  charges  of  their  family."4 


AUSTRALASIA5 

It  is  necessary  to  refer  but  briefly  to  the  development  of  fac- 
tory legislation  in  Australasia.  In  general  the  development  was 
along  English  lines,  differing  in  degree  rather  than  in  character. 
In  New  Zealand  and  Victoria  the  first  Factory  Acts,  in  each 
case,  were  passed  in  1873.  In  1894  New  Zealand  took  the  first 

1  This  was  the  period  of  republican  ideas  and  experiments  in  America 
and  in  France,  and  it  was  not  without  its  influence  on  the  English  public 
and  the  English  Government. 

2  The  Truck  Acts  dated  back  to   1464.     These  Acts  forbid  the  payment 
of  wages  otherwise  than  in  the  current  coin  of  the  realm,  that  is  to  say  in 
goods  of  any  kind,  either  in  full  or  part  payment.     George  Howell,  "Hand- 
book of  Labor  Laws." 

8  9  Geo.  I.  cap.  7,  and  22  Geo.  III.,  cap.  83. 

4  Rogers,  Thorold,  "Work  and  Wages,"  p.  437.  "It  is  obvious,"  said 
John  Stuart  Mill,  "that  this  (Allowance  System)  is  merely  another  mode  of 
fixing  a  minimum  of  wages;  not  otherwise  differing  from  the  direct  mode, 
than  in  allowing  the  employer  to  buy  the  labour  at  its  market  price,  the 
difference  being  made  up  to  the  labourer  from  a  public  fund."  Principles 
of  Political  Economy,  Book  II,  Chapter  XII,  3. 

8  Reeves,  William  P.,  "State  Experiments  in  Australia  and  New  Zea- 
land," Vol.  II,  p.  7-47.  Irene  Osgood  Andrews,  "Minimum  Wage  Legisla- 
tion," p.  53. 


20  PUBLIC   REGULATION   OF 

step  toward  modern  minimum  wage  legislation.  In  that  year 
the  Parliament  passed  the  Industrial  Conciliation  and  Arbitra- 
tion Act,  which  went  into  effect  the  following  year.  In  Victoria 
the  conditions  which  inspired  the  enactment  of  a  minimum 
wage  law  were  more  acute  than  the  conditions  in  New  Zealand, 
due  to  a  serious  industrial  depression  which  grew  out  of  a  period 
of  almost  unprecedented  speculation,  following  the  discovery  of 
gold  in  Victoria  in  the  fifties ;  and  because  the  conditions  were 
more  acute,  the  Victorian  law  was  made  more  effective.  The 
Victorian  minimum  wage  law,  the  Wage  Boards  or  Special 
Boards  Act,  was  enacted  in  1896. 

The  difference  in  the  effectiveness  of  the  New  Zealand  and 
Victorian  Act  is  due  to  a  really  fundamental  difference  in  their 
nature.  The  New  Zealand  Act  is  aimed  primarily  at  the  settle- 
ment of  trade  disputes,  whereas  the  Victorian  Act  aimed  at  the 
evils  of  the  sweating  system.  Thus  there  are  two  types  of 
minimum  wage  laws  in  Australasia:  The  New  Zealand  type, 
adopted  later  by  New  South  Wales,1  Western  Australia,  and  by 
the  Commonwealth  of  Australia  where  the  trade  disputes  are 
interstate ;  and  the  Victorian  type,  adopted  by  South  Australia, 
Queensland  and  Tasmania.2  It  was  the  Victorian  type  that  was 
followed  by  England  in  the  Trade  Boards  Act  of  October  20, 
1909,  and  by  the  eleven  American  States  in  1912,  1913  and  1915. 

That  these  Minimum  Wage  Acts  of  Australasia  are  but  an 
extension  of  the  policy  of  the  Factory  Acts  is  the  testimony  of 
Ernest  Aves  in  his  "Report  to  the  Secretary  for  the  Home  De- 
partment on  the  Wages  Boards  and  Industrial  Conciliation  Acts 
of  Australia  and  New  Zealand"  in  1908.  On  page  n  of  that 
report  he  says:  "The  Special  Boards  system  of  Victoria  is  an 
extension  of  the  factory  legislation  of  that  State,  and  the  legal 
sanction  for  the  establishment  of  these  Boards  is  still  found 
in  the  same  act  that  regulates  conditions  as  regards  health  and 
safety.  Thus,  alike  in  enactment  and  in  administration,  the  Spe- 
cial Boards  form  part  of  the  general  system  of  factory  regula- 
tion." 

1  Modifications.     See  Appendix,  page  5. 

2  Commonwealth   of  Australia:   Commonwealth  conciliation   and   arbitra- 
tion act,  December  15,  1904.     New  South  Wales:  Industrial  arbitration  act, 
December  10,   1901.     South  Australia:  Factories  act,  December  5,   1900,  be- 
came effective  with  act  of  1906.     Tasmania:  Wages  board  act,  January   13, 
1911.     Western  Australia:     Conciliation   and  arbitration   act,   February    19, 
1902.     Queensland:  Wages  board  act,  April  15,  1908.     Repealed  in  1912  and 
replacea  by  the  Industrial  Peace  Act. 


THE   RATE   OF   WAGES  21 


THE  UNITED  STATES 

In  the  several  States  of  the  American  Union  a  mass  of  labor 
legislation  has  developed  similar  to  the  legislation  in  England 
growing  out  of  the  Factory  Acts.  It  is  necessary  to  refer  to  only 
a  few  of  these  acts,  such  as  Employers'  Liability,  Workingmen's 
Compensation,  and  Ten  and  Eight  Hour  Laws,  to  recall  to  the 
mind  of  the  reader  a  great  many  police  regulations  directly  affect- 
ing the  relations  between  the  employer  and  the  employed. 
The  United  States  have  moved  more  cautiously  in  the  direction 
of  social  legislation  than  have  England  and  Australasia.  We 
have  been  so  imbued  with  the  individualistic  philosophy  that  we 
have  permitted  the  lower  stratum  of  laborers  to  degenerate  into 
virtual  serfs,  rather  than  interfere  with  the  individual's  liberty 
to  sell  his  labor  in  the'  market  of  his  own  choice,  and  on  his 
own  terms.  Society  has  been  criminally  negligent  in  refusing  to 
prevent,  earlier,  this  economic  exploitation  of  these  helpless 
classes.  However,  the  State  and  Federal  police  powers  are  now 
being  invoked  for  their  protection,  and  this  is  one  of  the  most 
hopeful  tendencies  in  American  politics  today.  Under  authority 
of  this  dynamic  power,  all  our  liberal  social  legislation,  looking  to 
the  alleviation  of  the  burden  of  want,  is  justified.  In  the  United 
States  the  step  from  regulation  of  the  hours  and  the  conditions 
of  labor  to  the  regulation  of  the  rate  of  wages  has  been  made 
peculiarly  difficult  by  virtue  of  the  combined  opposition  of  labor 
unions,  who  have  almost  unanimously  opposed  a  legal  minimum 
wage  for  men,  and  legalists,  who  hold  that  the  step  is  not  con- 
stitutional. The  organized  workers  have  insisted  from  the  be- 
ginning upon  establishing  their  own  minimum  wage  scale  through 
organized  effort ;  but  they  have  favored  a  legal  minimum  wage 
for  women  and  minors,  since  these  are  not  effectively  organized, 
and  can,  therefore,  be  easily  exploited.1  Furthermore,  it  has  been 
generally  conceded  that  the  constitutional  case  against  a  mini- 
mum wage  law  for  women  would  not  be  so  strong  as  it  would 
be  if  men  were  included.  In  fact,  the  Supreme  Court  of  Oregon, 
in  upholding  the  minimum  wage  law  of  that  State,2  hinted  that 

1  Official  Report  of  the  Executive  Council  of  the  American  Federation 
of  Labor  to  the  thirty-third  annual  convention,    1913.    Andrews,   Minimum 
Wage  Legislation,  p.  82. 

2  Stettler  v.  O'Hara,  69  Ore.  519;  139  Pac.  793  (1914). 


22  PUBLIC   REGULATION   OF 

a  similar  law  for  men  might  not  be  upheld.  The  result  has  been 
that  of  the  eleven  States  that  have  adopted  minimum  wage  laws 
not  one  has  included  men. 

The  eleven  States  are :  Massachusetts,  Oregon,  California,  Col- 
orado, Minnesota,  Utah,  Washington,  Nebraska,  Wisconsin,  Kan- 
sas and  Arkansas. 

These  states  have  not  evaded  the  constitutional  difficulties, 
however,  by  excluding  adult  males  from  the  operation  of  their 
laws.  The  right  of  Or^cron  to  enforce  her  act  was  immediately 
contested  in  the  now  famous  case  of  Stettler  v.  O'Hara.1  As 
the  Supreme  Court  of  the  State  upheld  the  law  as  a  proper 
exercise  of  the  State's  police  power,  an  appeal  was  taken  by 
the  appellant  to  the  Supreme  Court  of  the  United  States.  The 
case  was  argued  before  that  court  in  December,  1914,  and  the 
country  is  awaiting  the  decision  with  a  great  deal  of  interest. 
In  Minnesota  constitutional  objections  have  successfully  blocked 
the  enforcement  of  the  law.  On  November  23,  1914,  Judge 
Catlin  of  the  Ramsey  County  District  Court  declared  the  act  un- 
constitutional on  the  grounds  that  it  violated  the  Fourteenth 
Amendment  to  the  Federal  Constitution  and  delegated  legislative 
power  to  the  Minimum  Wage  Commission.2  The  case  is  now 
before  the  Supreme  Court  of  the  State. 

1  Stettler  v.  O'Hara,  69  Ore.  519;   139  Pac.  793  (1914). 

2  Ramer  Co.  v.  Evans,  District  Court,  Second  Judicial  District. 


CHAPTER  II. 

CONSTITUTIONAL   ASPECTS   OF   MINIMUM 

WAGE    LEGISLATION    IN    THE 

UNITED  STATES 

The  principal  constitutional  objections  urged  to  a  minimum 
wage  law  are :  first,  it  violates  the  Fourteenth  Amendment  to  the 
Federal  Constitution  in  that  it  denies  to  citizens  the  right  to 
freedom  of  contract,  it  takes  property  without  due  process  of 
law  and  without  compensation,  arid  it  is  not  uniform  in  its  oper- 
ation, and  hence  is  class  legislation;  secondly,  it  delegates  legis- 
lative power  to  an  appointive  commission. 

The  answers  to  these  objections  are:  first,  that  the  regulation 
of  wages  is  properly  within  the  police  power  of  a  State,  and 
that  since  the  Fourteenth  Amendment  does  not  impair  or  inter- 
fere with  a  State's  police  power,1  minimum  wage  legislation 
cannot  come  into  conflict  with  that  Amendment;  secondly,  since 
the  Minimum  Wage  Commission  in  no  case  has  discretionary 
power  to  make  the  law,  but  only  to  determine  when  the  facts 
or  contingencies,  upon  which  the  action  of  the  act  is  made  to 
depend,  exist,  such  commission  does  not  exercise  delegated  leg- 
islative powers. 


THE  POLICE  POWER 

The  activities  of  a  government,  whatever  its  form,  logically 
fall  under  five  heads:  foreign,  military,  judicial,  financial,  and 
internal  affairs.  Most  important  of  these  is  the  department  of 
internal  affairs,  considered  from  the  point  of  view  of  the  mod- 
ern conception  of  a  state ;  and  chief  among  the  sovereign  powers 
relied  upon  by  the  state  for  the  performance  of  the  duties  of 
this  department,  is  the  so-called  police  power.  This  power  can- 
not be  specifically  defined  as  it  is  an  exceedingly  dynamic  power 
growing  to  fit  the  social  need.  The  courts  have  wrestled  with 

1  Slaughter  House  Case,  16  Wallace,  97. 


24  PUBLIC   REGULATION    OF 

it,  but  all  they  have  been  able  to  do,  beyond  giving  a  very  gen- 
eral definition,  has  been  to  determine  whether  or  not  the  matter 
under  consideration  in  each  specific  case  considered  has  been  a 
proper  exercise  of  the  police  power.  They  have,  as  intimated, 
repeatedly  defined  it  in  broad  and  general  terms.  The  Supreme 
Court  of  the  United  States  has  said :  "It  may  be  said  in  a  gen- 
eral way  that  the  police  power  extends  to  all  the  great  public 
needs.  It  may  be  put  forth  in  aid  of  what  is  sanctioned  by 
usage  as  held  by  the  prevailing  morality  or  strong  preponderant 
opinion  to  be  greatly  and  immediately  necessary  to  the  public 
welfare."1  Professor  Tucker  defines  it  thus  :2  "Police  power 
is  the  name  given  to  the  inherent  sovereignty  which  it  is  the 
right  and  duty  of  the  government  or  its  agents  to  exercise  when- 
ever public  policy,  in  a  broad  sense,  demands  for  the  benefit  of 
society  at  large,  regulations  to  guard  its  morals,  safety,  health, 
order  or  to  insure  in  any  respect  such  economic  conditions  as  an 
advancing  civilization  of  a  highly  complex  character  requires." 

According  to  Professor  Ernst  Freund,3  the  police  power  is 
one  of  the  inherent  functions  of  government;  the  restraining 
and  compelling  power  of  the  government  which  is  exercised  for 
the  protection  and  the  furtherance  of  the  public  welfare,  or  the 
internal  public  policy.  He  classifies  the  interests  embraced  under 
the  public  welfare  under  three  heads:  first,  the  primary  social 
interests  of  safety,  order  and  morals;  secondly,  the  economic 
interests ;  and  thirdly,  the  non-material  or  ideal  and  political 
interests.  Of  these  three  spheres  of  Activities,  conditions  and 
interests,  the  first  is  conceded  to  Half^ithin  the  police  power, 
the  second  is  debatable,  and  the  third  exempt.  If,  then,  mini- 
mum wage  legislation  can  be  brought  within  the  first  or  second 
of  these  spheres  of  the  internal  public  policy,  such  legislation 
clearly  falls  within  the  police  power,  being  enacted  in  the  inter- 
est of  the  public  welfare. 

Health  and  Safety:  In  all  well  ordered  States  the  power 
and  the  duty  of  the  government  to  take  all  proper  and  needful 
measures  for  the  protection  of  the  public  health  is  no  longer 
seriously  questioned ;  and,  as  the  whole  is  no  greater  and  no 
better  than  the  sum  of  all  its  parts,  it  is  clear  that  the  health  of 
the  individual  is  affected  with  a  public  interest  from  which  the 

1  Nobel  State  Bank  v.  Haskell,  219  U.  S.,  104. 

*  8  Cyc.  863,  quoted  by  the  Oregon  Supreme  Court  in  its  opinion  in 
Stettler  v.  O'Hara,  delivered  March  17,  1914,  and  upholding  the  Oregon 
minimum  wage  law. 

3  Freund,  Ernst,  "The  Police  Power." 


THE   RATE   OF  WAGES  25 

individual  cannot  even  voluntarily  dissociate  himself.1  In  the 
interest  of  the  public  health,  the  State  has  come  more  and  more 
to  interfere  in  the  relations  between  the  employer  and  the  em- 
ployee, even  to  the  extent  of  protecting  the  individual  worker 
against  himself.  The  employer  is  required  to  take  proper  pre- 
cautions for  the  safety  and  health  of  his  employees;  and,  on  the 
other  hand,  the  employee  is  not  allowed  to  labor  in  certain  dan- 
gerous or  responsible  employments  more  than  a  prescribed  num- 
ber of  hours  each  day.  The  public  health  is  to  be  guarded  with 
jealous  care,  and  to  this  end  the  protection  of  the  State  shall 
extend  even  to  the  generations  yet  unborn.  If,  as  Professor 
Freund  says,  a  community  may  justly  assume,  under  the  police 
power,  the  guardianship  of  the  health  of  the  unborn  generatiorfs 
by  forbidding  the  marriage  of  persons  of  near  kin,  of  inebriates, 
and  of  persons  afflicted  with  diseases  that  are  likely  to  afl&ect 
their  progeny,  why  should  not  such  protection  also  forbid'the 
maintenance  of  economic  conditions  that  are  seriously  impairing 
the  health  of  whole  classes  of  laborers,  and  making  them 
wholly  unfit  for  parenthood?  Low  wages,  in  the  first  place, 
undermine  the  health  of  a  very  considerable  number  of  female8 
workers  of  the  present  generation.  An  insufficient  wage  means 
cheap  and  insufficient  food  and  clothing,  unsanitary  lodgings, 
little  if  any  recreation,  and  little  or  no  medical  aid  however 
necessary  it  may  be.  Ill  health  is  the  inevitable  result,  and  ill 
health  leads  to  inefficiency,  and  inefficiency  to  still  lower  wages ; 
and  so  these  unfortunate  women  go  the  weary  rounds  of  this 
vicious  circle  whose  final  stages  too  often  are  some  public  insti- 
tution and  a  pauper's  grave.  And  the  mischief  does  not  end 
here,  no,  not  even  with  death,  for  the  sins  of  society  are  visited 
upon  posterity.  Low  wages,  therefore,  in  the  second  place, 
affect  the  health  of  the  next  generation,  for  the  health  of  the 
race  is  conditioned  upon  the  preservation  of  the  health  of  our 
potential  mothers,  the  toilers  of  today  but  the  mothers  of  to- 
morrow. Following  are  a  few  representative  conclusions  of  so- 
cial workers  in  different  parts  of  the  country." 

"The  wages  paid  to  women  workers  in  most  occupations  are 
miserably  inadequate  to  meet  the  cost  of  living  at  the  lowest 

1  Holden  v.   Hardy,    169  U.   S.,   397. 

2  As   American   minimum   wage   legislation   applies   only  to    women   and 
minors,  the  discussion  is  confined  primarily  to  women  workers. 

3  See  also  Louis  D.  Brandeis'  Appendix  to  the  Briefs  Filed  on  Behalf 
of  the   Respondents  in  the  Case  of   Stettler  v.   O'Hara,  in  the   Supreme 
Court  of  Oregon,  p.  5-40. 


26  PUBLIC   REGULATION    OF 

standard  consistent  with  the  maintenance  of  the  health  and 
morals  of  the  workers."1 

"Low  wages  means  insufficient  food,  insufficient  food  unfitness 
for  labor,  so  that  the  vicious  circle  is  complete.  The  children 
of  such  parents  have  to  share  their  privations,  and  even  if 
healthy  when  born  the  lack  of  sufficient  food  soon  tells  upon 
them.  Thus  they  often  grow  up  weak  and  diseased  and  so 
tend  to  perpetuate  the  race  of  the  unfit."2 

"For  health's  sake,  the  community  cannot  afford  to  permit 
its  girl  members  to  receive  a  wage  too  low  for  nutrition,  or  for 
the  refreshment  o^*  exhausted  strength.  It  reacts  ultimately  to 
the  harm  of  society  when  a  garment  worker  has  weak  coffee 
for  breakfast,  goes  without  lunch  altogether,  and  eats  two  or 
three  sandwiches  for  dinner,  as  her  habitual  diet.  She  may 
keep  up  through  her  working  life,  but  in  her  domestic  relations 
she  leaves  a  heritage  of  weakness  and  inefficiency.  We  are  all 
the  sufferers  when  a  shop  girl  continues  at  her  work  after  vital- 
ity has  ebbed  because  her  wages  are  too  low  to  permit  treat- 
ment or  rest."8 

The  findings  of  these  and  other  investigators  more  than 
bear  out  their  conclusions.  The  Social  Survey  Committee  of 
Oregon  reports  that  $10  a  week  "is  the  very  least  on  which  the 
average  self-supporting  woman  can  live  decently  and  keep  her- 
self in  health  in  Portland."4  And  yet  the  committee  found  that 
out  of  4,523  wage  schedules  in  the  various  industries  of  Portland, 
2,573,  or  56.8  per  cent.,  received  less  than  $10  a  week;  and  in- 
formation for  1,133  women  wage  earners  in  the  various  indus- 
tries of  twenty-six  towns  in  Oregon,  outside  of  Portland,  shows 
that  only  the  stenographers  receive  an  average  wage  of  $10  a 
week  or  more.6  Conditions  in  Washington  are  much  the  same  as 
in  Oregon.  The  Industrial  Welfare  Commission,  which  com- 
menced work  in  July  1913  and  reported  in  March  1914,  found 
that  "$io  a  week  is  approximately  the  minimum  for  decent  sub- 
sistence and  that  67  per  cent,  get  less  than  that  amount."6  The 
data  collected  was  taken  from  all  parts  of  the  State,  and  it  was 
found  that  the  average  wage  rate  was  approximately  $8.00  per 
week,  and  that  55.6  per  cent,  of  the  mercantile  store  employees, 

1  Report  of  the  Social  Survey  Committee  of  the  Consumer's  League  of 


Oregon,  p.  6. 


Rowntree,  in  "Poverty — A  Study  of  Town  Life,"  p.  46. 
0  Elizabeth  B.  Butler,  "Women  and  the  Trades,"  p.  349. 
4  Report   of   the   Social    Survey   Committee    of   the    Consumers'    League 
Dregon,  p.  67,   1913. 
8  Ibid.,  p.  22-23. 
6  Report  of  Industrial  Welfare  Commission  of  Washington,  p.  77.    1914. 


THE   RATE   OF   WAGES  27 

71.2  per  cent,  of  the  factory  employees,  and  72.4  per  cent,  of  the 
laundry  employees  received  less  than  $10  a  week.1  According  to 
the  report  of  the  Massachusetts  Commission  on  Minimum 
Wage  Boards  for  1912,  from  $9  to  $11  is  believed  to  be  the  living 
minimum  wage  for  women  in  that  State.2  The  average  weekly 
earnings  of  the  1,694  women  investigated  in  the  candy  industry 
were  $5.40.  Of  the  1,218  women  over  eighteen  years  who  re- 
ported both  their  earnings  and  their  age,  41  per  cent  averaged 
less  than  $5  and  65  per  cent,  less  than  $6  a  week.  Of  the  301 
minors  employed,  79.8  per  cent,  averaged  less  than  $5  per  week 
and  93  per  cent,  less  than  $6.3  Of  the  2,861  women,  over  eigh- 
teen years,  in  the  retail  stores,  who  reported  both  their  age  and 
their  earnings,  10.2  per  cent,  averaged  less  than  $5  a  week  and 
29.5  per  cent,  less  than  $6.  Of  the  467  minors,  66.4  per  cent. 
averaged  less  than  $4  a  week  and  96.3  per  cent,  less  than  $5.* 
In  the  laundries  the  average  weekly  earnings  of  the  1,636  women 
reported  on  was  $6.52.  16  per  cent,  of  the  adults  earned  less 
than  $5  a  week;  24.7  per  cent,  from  $5  to  $5.99;  19.4  per  cent, 
from  $6  to  $6.99;  and  38.9  per  cent.  $7  or  more.5  Of  the  14,585 
female  operatives  in  the  New  England  cotton  mills,  40.2  per  cent, 
received  less  than  $6  a  week,  and  15.3  per  cent,  received  between 
$6  and  $6.99.° 

In  1911  the  Connecticut  legislature  appointed  a  commission 
to  investigate  the  condition  of  women  and  children  wage  earners 
in  Connecticut.  The  report  of  the  commission,  after  pointing 
out  that  $7  a  week  is  "barely  a  living  wage"  for  a  self-supporting 
woman  or  girl,  proceeds  to  show  that  approximately  one-half 
of  the  women  employed  in  the  cotton,  metal,  corset,  rubber  and 
silk  industries  receive  less  than  $7  a  week  for  their  labor.  The 
percentages  given  are  as  follows :  cotton,  27.57  per  cent. ;  metal, 
46  per  cent.;  corset,  49.15  per  cent.;  rubber,  49.65  per  cent.;  and 
silk,  56.6  per  cent.7  The  National  Civic  Federation,  after  an 
investigation  in  New  York  City,  made  a  report  in  April  1913,  in 
which  is  found  these  significant  figures.  Having  determined  that 
$9  a  week  is  the  minimum  for  self-supporting  girls  in  New  York, 
the  report  goes  on  to  say:  "38.65  per  cent.,  or  3,427  of  the  8,867 
saleswomen,  and  51.33  per  cent,  or  10,073  of  all  the  women  em- 

1  Report  of  Industrial  Welfare  Commission  of  Washington,  p.   17.   1914. 

2  Report  of  the  Commission  on  Minimum  Wage  Boards,  Massachusetts, 

P.    220.    IQI2. 

9  Ibid.,  p.  5. 
4  Ibid.,  p.   113. 
6  Ibid.,  p.  157. 

6  Ibid.,  p.  201. 

7  Survey,  Vol.  30,  p.  736. 


28  PUBLIC  REGULATION   OF 

ployees,  totalling  19,627,  in  17  New  York  stores  get  less  than  $8 
a  week.  One  store  has  none  selling  under  $8  and  only  64  under 
$9 ;  while  another  having  two  at  less  than  $8  has  only  five  under 
$9.  On  the  other  hand,  there  are  654  of  the  total  number  of 
feminine  employees  receiving  under  $4  and  2,603  getting  less  than 
$5."x  In  the  District  of  Columbia,  according  to  the  testimony  of 
Miss  Obenauer,  special  agent  of  the  Federal  Bureau  of  Labor,  the 
average  weekly  pay  for  saleswomen  in  department  stores,  as 
reported  by  the  pay  rolls  covering  1,760  women,  was  $6.55. 
Cash  girls  received  only  $2.2  Lieutenant  Governor  Barrat 
O'Hara  of  Illinois,  and  Chairman  of  the  Senate  Vice  Investigat- 
ing Committee,  issued  the  following  statement  on  March  6,  1913. 
The  first  part  is  quoted.  "The  report  of  our  investigators  show 
that  there  are  more  than  50,000  girls  and  women  in  the  city  of 
Chicago  who  are  receiving  a  salary  of  $5  a  week  or  less.  On 
this  stipend  these  50,000  women  are  struggling  for  existence  with 
practically  no  advance  or  chance  for  relief  in  sight.  These 
women  are  living  in  furnished  rooms  and  are  underfed,  according 
to  our  investigators.  It  is  safe  to  say  that  the  great  majority 
of  them  since  they  have  become  wage  earners  do  not  know 
what  a  full  meal  means.  Half  of  them  live  on  two  meals  a  day 
and  these  meals  of  the  ten  or  fifteen  cent  variety.  Many  of  them 
have  to  depend  for  clothes  on  what  more  successful  friends  are 
willing  to  give  them  of  cast  off  garments."8  Another  investi- 
gator, Ester  Packard,  chose  at  random,  from  the  payrolls  of 
the  factories  and  department  stores  all  over  the  State  of  New 
York,  three  hundred  girls  who  were  receiving  less  than  $10  a 
week.  In  her  investigation,  Miss  Packard  saw  every  one  of  these 
girls  personally  and  individually.  She  summarizes  her  report 
as  follows :  "Just  keep  still,"  and  "Trying  to  get  along."  It  was 
this  which  the  three  hundred  budgets  revealed.  To  one  girl,  $6 
meant  "lack  of  food,"  to  another  "poor  living  quarters,"  and  to 
yet  another  "no  savings  for  the  rainy  day."  But  invariably  it 
meant  to  all  a  cramped  subnormal  way  of  life — a  mere  existence, 
not  a  real  living.4 

1  Survey,  Vol.  31,  p.  50. 

2  Ibid.,   Vol.    29,   p.    659.      "The   Report   on    Condition    of   Women    and 
Child  Wage  Earners  in  the  United  States   (Vol.  XVIII,  page   23;   Vol.  I, 
pages  433  and  436;  Vol.  II.  pages  365,  368;  Vol.  Ill,  pages  525,  527;   Vol. 
IV,   pages   259,   261;   Vol.   V,  pages  41,   45   and   56)    shows  that   of  86,000 
women  wage  earners  sixteen  years  of  age  and  older,  over  40  per  cent,  were 
receiving  less  than   $6.00  a  week  and   approximately  three-fourths  were  re- 
ceiving less^than  $8.00  per  week." — Marie  L.  Obenauer.  in  Report  by  A.  J. 
Porter,  National  Civic  Federation,  Sixteenth  Annual  Meeting,  Washington, 
D.  C.,  January  17,  1916.  p.  31. 

'  Chicago  Daily  Newspapers. 
4  Survey,  February  6,  1915. 


THE  RATE  OF  WAGES  29 

But,  says  the  employer  who  objects  to  paying  a  living  wage, 
a  great  many  of  my  employees  live  at  home  and  do  not  depend 
upon  their  earnings  for  their  support;  they  are  working  for 
"pin  money,"  not  for  a  living.  It  is  undoubtedly  true  that  in 
our  towns  and  villages  some  girls  do  .work  for  "pin  money," 
but  that  is  not  the  case  in  our  large  cities,  from  which  the 
foregoing  figures  are  taken.  All  the  investigators  whose  reports 
are  familiar  to  the  writer,  declare  that  the  number  of  girls  work- 
ing for  "pin  money"  is  a  negligible  factor,  that  women  are  in 
industry  from  economic  compulsion.  A  Federal  report  says :  "Of 
women  who  work  and  live  at  home,  87.7. per  cent,  of  the  females 
of  all  cities  give  all  of  their  earnings  to  the  family."1  In  the 
opinion  of  the  Massachusetts  Commission  on  Minimum  Wage 
Boards  the  "number  who  are  working  in  order  simply  to  add 
to  their  comforts  or  luxuries  is  insignificant."2  "These  figures," 
says  a  Kansas  City  report,  referring  to  the  figures  quoted  in  the 
table  which  is  soon  to  follow,  "explode  any  notions  that  many 
girls  living  at  home  go  into  shops  in  order  to  earn  'pin  money;' 
a  majority  of  them  pay  as  much  or  more  into  the  family  as  they 
would  have  to  pay  if  they  were  boarding  out,  but  there  may  be 
enough  'pin  money'  girls  to  help  depress  the  wages  of  neces- 
sitous workers."3 

The  following  tables  will  throw  added  light  upon  the  ques- 
tion: 

CONNECTICUT4 

No  reporting 

as  to  Con-  Per  Cent.  Contributing 

Industry                               tributions  All                  Part                   None 

Metal    770  66.24                 33.11                     .65 

Rubber    307  65.15                 34«53             i  worker 

Corset    923  74.0                   24.27                   1.73 

KANSAS  CITY5 

No  reporting 

as  to  Con-  Per  Cent.  Contributing 

Industry                               tributions  All                  Part                   None 

Factories  and  Stores....            912  23.0                   67.0                     9.0 

1  Senate  Document  No.  645,  6ist  Congress,  Second  Session,  1911,  p.  393. 

2  Report  of  the  Massachusetts  Commission  on  Minimum  Wage  Boards, 
1912,  p.   17. 

8  Report  on  Wage  Earning  Women  in  Kansas  City.  Board  of  Public 
Welfare  of  Bureau  of  Labor  Statistics,  1913,  p.  63. 

4  Report  of   Special   Commission   to   Investigate   the   Condition   of    Wage 
Earning  Women  and  Minors  in  the  State  of  Connecticut,  1913,  p.  201,  216, 
229. 

5  Report  on  the  Wage  Earning  Women  in  Kansas  City.    Board  of  Pub- 
lic Welfare  of  Bureau  of  Labor  Statistics,  Kansas  City,  1913,  p.  62,  63. 


PUBLIC  REGULATION   OF 


MILWAUKEE2 


Industry 
Factories  and  Stores . . . 


No  reporting 
as  to  Con- 
tributions 
1,078 


Per  Cent.  Contributing 
All  Part  None 

81.16  18.83  .006 


BOSTON3 

No  reporting 

as  to  Con-            Per  Cent.  Contributing 

Industry                                tributions             All  Part                    None 

Factories   478                 61.7  36.4                     1.9 

Stores1 239                  55.6  38.9                      5.5 

Stores     2,276                 61.7  34.9                     3.3 

CHICAGO3 

No  reporting 

as  to  Con-            Per  Cent.  Contributing 

Industry                               tributions    •        All  Part                   None 

Stores    178                78.7  17.4                    3.9 

Factories   268                81.3  17.2                    1.5 

MINNEAPOLIS  &  ST.  PAUL3 

No  reporting 

as  to  Con-            Per  Cent.  Contributing 

Industry                                tributions             All  Part                    None 

Stores    94                 47.9  44.7                     7.4 

Factories     129                 53.5  44.2                     1.5 

NEW  YORK3 

No  reporting 

as  to  Con-            Per  Cent.  Contributing 

Industry                               tributions            All  Part                   None 

Stores    344                 84.3  11.9                     3.8 

Factories   1,532                88.1  11.3                      .6 

PHILADELPHIA3 

No  reporting 

as  to  Con-            Per  Cent.  Contributing 

Industry                               tributions            All  Part                   None 

Stores    264                56.8  39.0                    4.2 

Factories   732                67.9  30.6                    1.5 

ST.  LOUIS8 

No  reporting 

as  to  Con-            Per  Cent.  Contributing 

Industry                               tributions            All  Part                   None 

Stores    95                 77.9  17.9                     4.2 

Factories   231                74.9  21.2                    3.9 

1  From  the  Report  of  the  Massachusetts  Commission  on  Minimum  Wage 
Boards,   1912,  p.   140. 

2  J.   R.  Commons,  "Proposed  Minimum  Wage  for  Wisconsin,"  Wiscon- 
sin Consumers'  League,  Madison,  1913,  p.  9,   n. 

3  Senate  Document  No.  645,  6ist  Congress,  2d  Session,  1911.    Data  taken 
from  tables  on  p.  19,  21.    Also  summarized  by  Louis  Brandeis  in  his  Appen- 
dix  to   Briefs   Filed  in   Behalf   of   Respondents   in    Stettler   v.    O'Hara,    in 
Supreme  Court  of  Oregon,  October  term,  1913. 


THE   RATE   OF  WAGES  31 

But,  if  the  "pin  money"  argument  is  sound,  then  the  case 
against  a  low  wage  becomes  doubly  strong.  The  argument  would 
justify  the  payment  of  less  than  living  wages  to  women  em- 
ployees who  live  at  home  and  are  not  dependent  upon  their  earn- 
ings for  their  living.  The  objection  to  this  arrangement  is 
evident.  If  an  employer  pays  these  women  less  than  living 
wages,  is  he  not  in  receipt  of  their  working  energy  at  less  than 
cost?  Who  pays  the  difference?  Their  parents.  What  is  the 
character  of  this  payment?  A  gift  or  a  bounty  paid  toward  the 
revenues  of  the  employer.  The  man  who  would  uphold  such 
a  reprehensible  practice  as  this  should  not  be  argued  with,  he 
should  be  investigated. 

Then  too,  since  it  is  impossible  to  have  one  wage  schedule  for 
women  workers  who  live  at  home  and  another  for  women 
"adrift,"  the  practical  results  of  paying  the  former  less  than  a 
living  wage  is  to  put  the  latter  on  the  same  wage  basis.  Thus 
the  employer  levies  tribute  indiscriminately  upon  all ;  and  the 
pity  of  it  all  is  that  the  woman  adrift  must  pay  that  tribute  or 
fare  worse,  and  as  she  has  no  legitimate  way  to  supplement  her 
wages,  she  must  either  starve  or  pay  for  the  means  of  liveli- 
hood with  the  loss  of  her  virtue.  Is  it  possible  to  conceive  of 
a  more  vicious  parasitism  than  this? 

In  view  of  these  facts,  gathered  from  many  reliable  sources, 
it  seems  evident  that  there  is  a  very  important  percentage  of 
women  workers  who  are  living  on  or  below  the  bread  line,  and 
whose  potential  competence  as  workers  and  mothers  is,  in  con- 
sequence, seriously  impaired.  Who  will  maintain  that  this  condi- 
tion of  affairs  does  not  affect  the  public  welfare,  the  health  and 
material  well-being  of  this  and  future  generations?  Is  it  not 
within  the  police  power  of  a  State  to  protect  the  weak  members 
of  society  from  exploitation,  and  to  make  it  possible,  if  it  is 
possible,  for  the  unborn  to  be  well-born?  If  then  the  end  be 
legitimate,  and  in  harmony  with  our  ideal  of  government,  should 
not  the  legislature  possess  the  choice  of  means  that  are  con- 
ductive to  the  attainment  of  this  end? 

Morals:  Turning  from  a  consideration  of  the  relationship 
of  low  wages  to  safety  and  health,  to  the  relationship  between 
starvation  wages  and  vice,  we  enter  a  much  disputed  sphere. 
Investigators  differ  in  their  conclusions.  The  consensus  ofrnptn- 
ion  seems  to  be,  however,  that  although  low  wages  may  not  be 
the  direct  and  immediate  cause  for  the  fall  of  many  women,  still 
their  indirect  influence  is  very  disastrous.  Poverty  is  a  menace 
5 


32  PUBLIC   REGULATION   OF 

and  a  snare.  Poverty  is  an  opiate  that  blunts  the  moral  sensi- 
bilities, weakens  the  will,  and  makes  the  descent  into  an  immoral 
life  easy.  Once  having  broken  faith  with  her  womanhood,  a 
fallen  woman  finds  little  in  a  life  of  decency,  that  is  conditioned 
upon  a  return  to  poverty,  to  attract  her  away  from  the  criminal 
ease,  luxuries  and  excitement  of  the  brothel. 

But  there  is  a  closer  relationship  between  low  wages  and 
immorality  than  through  a  mere  weakening  of  the  will,  impor- 
tant as  this  is.  One  of  the  direct  results  of  inadequate  wages  is 
to  compel  thousands  of  girls  to  live  in  cheap  boarding  or  tene- 
ment houses.1  The  close  quarters  in  these  places  permit  little  if 
any  privacy.  Often  where  there  are  men  and  women  lodgers  in 
the  same  house  the  entrance  to  the  rooms  of  the  men  lead 
through  the  rooms  of  the  girls,  or  vice  versa.2  About  fifty  per 
cent,  of  them  have  no  other  place  than  their  rooms  in  which  to 
receive  friends.3  This  cannot  help  but  blunt  a  girl's  sense  of 
proper  relations  with  the  other  sex  and  foster  standards  that  are 
prejudicial  to  an  enlightened  morality.  It  is  a  matter  of  com- 
mon knowledge,  too,  that  many  of  the  tenement  house  landlords 
expect  to  make  their  profits  not  primarily  from  the  rent,  but 
from  a  vicious  traffic  in  the  virtue  of  their  tenants.  Jacob  Riis 
wrote  of  these  landlords  in  1901 :  "We  have  heard  it  until  it  has 
made  our  hearts  sick,  how  they  traffic  in  virtue,  these  vultures, 
that  their  pockets  may  bulge  and  their  diamonds  blaze  while 
mothers  weep ;  how  girls  are  snared  for  the  bagnio,  and  sold 
by  their  seducers  into  a  slavery  from  which  death  is  the  onl;" 
escape,  for  while  they  live  they  must  help  fill  with  the  wages  of 
their  shame  the  bottomless  coffers  that  buy  elections  and  our 
liberties."4 

Another  result  of  a  low  wage  is  to  leave  the  recipient  nothing 
for  amusements.  Says  one  report:  "When  it  comes  to  amuse- 
ments, most  of  the  women  have  nothing  left  to  spend.  Of  the 
1,568  women  who  reported  on  this  question,  62  per  cent  said 
that  they  spent  no  money  for  pleasure — that  it  took  all  their 
earnings  to  meet  their  daily  expenses."5  Yet  these  girls  crave 
considerable  diversion — they  want  to  forget  their  troubles — they 

1  The  Social  Evil  in  Chicago,  Report  of  Vice  Commission,  1911,  p.  42-43. 

*  Senate  Document  No.  645,  6ist  Congress,  ad  Session,  1911,  p.  66. 

8  Senate  Document  No.  645,  6ist  Congress,  2d  Session,  1911.  p.  62. 
Report  of  Commission  on  Minimum  Wage  Boards  (Massachusetts),  1912, 
p.  213. 

4  Outlook,  October  26,  1901. 

8  Senate  Document  No.  645,  6ist  Congress,  2d  Session,  1911,  p.  73- 


THE   RATE   OF  WAGES  33 

want  to  get  away  from  their  cheerless  and  unsanitary  lodgings. 
As  a  result  they  either  accept  whatever  amusement  men  are 
willing  to  give  them,  or  they  flock  to  cheap  amusement  places, 
as  they  are  the  only  ones  they  can  afford.1  In  either  case  they 
are  subjected  to  tortuous  temptations  to  which  many  yield. 

Then  there  is  the  effect  of  the  attitude  of  the  employer  to 
consider — the  employer  who  does  not  have  to  pay  a  living  wage 
and  who  assumes  that  his  girl  employees  supplement  their  wages 
from  the  outside.  Take  the  case  of  one  of  the  hundreds  of 
girls  whose  weekly  expenses  exceed  their  wages.  If  she  has 
no  relatives  or  friends  to  assist  her,  what  is  she  to  do?  If  she 
protests  to  the  employer  she  is  met  with  a  "Haven't  you  a  man 
friend  to  help  support  you?"2  In  fact,  the  attempt  on  the  part  of 
many  employers  to  employ  girls  who  are  willing  to  work  for 
less  than  a  living  wage,  seems  to  be  nothing  less  than  a  bare- 
faced bid  for  girls  who  are  supplementing  their  wages  immor- 
ally, or  it  is  a  veiled  suggestion  to  innocent  applicants  that  they 
are  supposed  to  earn  a  little  on  the  outside.3  Miss  Evangeline 
Booth,  commander  of  the  salvation  army  in  the  United  States, 
while  in  Minneapolis  in  the  spring  of  1913,  made  the  comment : 
"I  know  that  in  New  York  City,  where  I  make  my  headquarters, 
a  working  girl  cannot  live  without  being  subjected  to  strong 
temptations  unless  she  is  paid  more  than  $9.00  or  $10.00  a  week. 
This  is  the  situation  in  New  York  and  I  do  not  believe  a  girl  can 
live  for  less  in  other  cities.  I  know  from  the  results  of  investi- 
gations by  the  Salvation  Army  in  New  York  to  better  the  con- 
ditions of  the  working  girl,  that  hundreds  of  girls  are  advised 
to  'go  wrong'  when  they  afe  employed." 

Finally,  it  cannot  be  controverted  that  low  wages  are  the 
immediate  cause  of  the  downfall  of  some  girls.  According  to 
a  report  from  Kansas  City,  seventy  out  of  the  300  inmates  of 
houses  of  ill  fame  in  that  city  gave  low  wages  as  the  cause  of 
their  downfall.4  During  the  investigation  in  the  spring  of  1913, 
by  the  Illinois  Senate  Vice  Commission,  Senator  Nels  Jual  of 
the  Commission  said :  "The  employers  think  that  low  wages 
have  nothing  to  do  with  immorality  among  women ;  the  women 
of  the  town  say  it  has  everything  to  do  with  it."  The  Minne- 

1  Senate  Document  No.  645,  6ist  Congress,  2d  Session.     1911,  p.  93,  94. 

2  Ibid.,  p.  30. 
'Ibid. 

4  Report  on  Wage  Earning  Women  of  Kansas  City.  Board  of  Public 
Welfare  of  Bureau  of  Labor  Statistics,  1913,  p.  81. 


34  PUBLIC   REGULATION    OF 

apolis  Morning  Tribune  for  March  8,  1913,  reported:  "The 
women  witnesses  talked  in  whispers  and  all  to  the  same  effect, 
namely,  that  they  had  been  unable  to  make  a  living  at  reputable 
callings,  and  so  took  the  downward  path."  On  March  6,  1913, 
Lieutenant-Governor  O'Hara,  the  chairman  of  the  Commission, 
said  in  a  public  statement  (quoted  in  part  above)  :  "In  brief  this 
is  the  situation:  environment  is  responsible  for  a  majority  of 
crime.  Women  go  wrong  because  they  are  compelled  to.  They 
have  to  live.  Life  is  dear  to  us  all.  .  .  .  The  senators  declare 
that  if  the  women  of  Illinois  are  being  paid  starvation  wages 
and  that,  as  a  result,  many  of  them  are  being  made  the  victims 
of  the  infamous  'white  slave'  traffic,  it  is  high  time  the  public 
take  cognizance  of  such  conditions."  Elizabeth  B.  Butler  shows 
the  intimate  relation  between  low  wages  and  prostitution  by  the 
following  examples  from  Pittsburg :  "A  girl  whose  father  was 
killed  by  an  electric  crane  was  the  only  one  of  the  family  old 
enough  to  work.  Forced  by  financial  means  to  accept  a  wage 
fixed  by  custom  at  a  point  below  her  own  cost  of  subsistence, 
much  more  below  the  cost  of  helping  to  maintain  a  family  of 
dependents,  she  drifted  into  occasional  prostitution.  Another 
Pittsburg  girl  was  induced  by  the  bitter  need  of  her  younger 
brothers  and  sisters  to  raise  her  wages  from  $6  a  week  to  $10 
by  concessions  to  her  employer,  and  finally  to  choose  prostitu- 
tion as  a  means  of  support.  A  comrade  of  hers  came  long  ago 
from  a  country  town  to  work  in  a  cigar  factory,  but  after  an 
unsuccessful  struggle  with  the  city,  drifted  into  the  same  way  of 
life.  Without  a  home  to  supplement  her  wages,  she  caught  at 
what  seemed  to  her  the  only  way  of  making  them  meet  her 
needs.  In  such  cases,  scarcely  typical,  but  far  from  uncommon, 
cause  and  effect  are  glaring  in  their  directness."1 

The  underpaid  working  girl's  two-hornecl  dilemma  is  this: 
her  business  employer  demands  cleanliness,  neatness  and  effi- 
ciency, but  he  is  willing  to  pay  her  in  wages  only  a  part  of  what 
she  needs  to  satisfy  these  conditions.  On.  the  other  hand,  in 
the  sorry  business  of  prostitution  those  who  deal  in  virtue  are 
willing  to"  pay  her  well  if  she  will  but  commercialize  her  woman- 
hood. What  shall  she  do?  That  is  the  problem  that  is  tortur- 
ing the  tempted  soul  of  many  a  starving  girl.  Yet  wise  individ- 
uals, who  have  always  basked  in  plenty,  insist  that  there  is  no 
relation  between  low  wages  and  vice. 

1  Elizabeth  B.  Butler,  "Women  -and  the  Trades,"  p.  347-8. 


THE  RATE   OF  WAGES  35 

Protection  against  Oppression.  That  the  State  occupies,  with 
respect  to  its  citizens,  a  position  of  "parens  patriae,"  trustee,  or 
guardian,  has  been  repeatedly  asserted  by  the  United  States 
Supreme  Court.1  It  is  the  duty  of  the  State,  therefore,  not  only 
to  protect  the  health  and  morals  of  its  subjects,  but  also  to 
extend  to ,  them  protection  against  economic  oppression.  "We 
hold,  therefore,"  said  Professor  William  F.  Willoughby  of 
Princeton  University,  in  his  presidential  address  before  the 
American  Association  for  Labor  Legislation  in  December  1913,* 
"that  the  refusal  by  the  State,  which  alone  has  the  power  of  en- 
acting and  enforcing  general  rules  of  conduct,  to  determine  the 
minimum  conditions  of  health,  security  and  comfort  which  the 
public  conscience  demands  as  the  birthright  of  all,  its  refusal  to 
prevent  the  exploitation  of  the  weak  and  helpless  through  ex- 
cessive hours  of  labor  or  payment  of  inadequate  compensation, 
and  its  refusal  to  insure  that  due  provision  will  be  made,  through 
insurance  institutions,  or  otherwise,  against  the  four  great  con- 
tingencies threatening  the  economic  security  of  the  individual — 
accident,  sickness,  old  age  and  inability  to  work,  means  its  fail- 
ure to  met  that  duty  which  it  is  the  prime  function  of  a  con- 
stitutional government  to  perform :  viz.,  the  protection  of  the 
individual  against  oppression  and  the  guaranteeing  to  him  of  the 
fullest  possible  enjoyment  of  life,  liberty  and  the  pursuit  of 
happiness."  On  this  understanding  of  the  powers  and  duties  of 
a  state,  minimum  wage  legislation  is  based.  But  in  the  opinion 
of  Judge  Catlin,3  and  others  who  oppose  the  legal  regulation  of 
the  rate  of  wages,  the  State  cannot  lawfully  become  a  "pater 
familias"  until  our  present  form  of  government  has  been  entirely 
changed;  they  hold  that  the  enforcement  of  a  minimum  wage  law 
is  an  assumption  by  the  State  of  this  paternalistic  power  and  is 
expressly  prohibited  to  the  State  by  the  Fourteenth  Amendment 
to  the  Federal  Constitution. 

The  Police  Power  and  the  Fourteenth  Amendment.  The 
Fourteenth  Amendment  does  not  impair  the  police  power  of  a 
state  to  legislate  in  the  interest  of  the  public  welfare.  This  was 
conclusively  determined  by  the  Supreme  Court  of  the  United 
States  in  the  famous  Slaughter  House  Cases4  in  1873.  This  same 

1  Missouri  v.   Illinois,   180  U.  S.,  208;  Kansas  v.   Colorado,   185  U.   S., 
125;  Mormon  Church  v.  The  United  States,  136  U  S.,  i. 

2  American  Political   Science  Review,   February     1914. 

3  Ramer  Co.  v.  Evans,  District  Court,  Second  Judicial  District,  Novem- 
ber 23,  1914.    Minnesota. 

4  The  Slaughter  House  Cases,  16  Wallace,  36,  and  in  U.  S.,  746. 


36  PUBLIC   REGULATION    OF 

court  said  in  a  later  case:  "But  neither  the  amendment  (Four- 
teenth)— broad  and  comprehensive  as  it  is — nor  any  other 
amendment,  was  designed  to  interfere  with  the  power  of  the 
state,  sometimes  termed  its  police  power,  to  prescribe  regulations 
to  promote  the  health,  peace,  morals,  education  and  good  order  of 
the  people,  and  to  legislate  as  to  increase  the  industries  of  the 
State,  develop  its  resources,  and  add  to  its  wealth  and  pros- 
perity."1 Again  the  Court  has  said :  "No  legislature  can  bargain 
away  the  public  health  or  the  public  morals.  The  people  them- 
selves cannot  do  it,  much  less  their  servants."2  Hence  the  legis- 
latures, when  they  adopted  the  Fourteenth  Amendment  for  their 
respective  States,  could  not  enter  into  a  bargain  that  could  be 
later  construed  as  a  surrender  of  the  States'  police  power  to 
protect  the  public  health  and  morals. 

Freedom  of  Contract.  Both  in  the  economic  and  the  legal 
sense,  freedom  of  contract  is  a  qualified  and  not  an  absolute 
right.  Under  the  present  system  of  highly  specialized  division 
of  labor  there  is  practically  no  mobility  of  labor.  A  laborer  is 
proficient  only  within  a  very  narrow  sphere  of  industry  and  his 
contractual  power  is  limited  to  that  narrow  field.  This  applies  to 
the  skilled  class  of  laborers.  If  we  consider  the  class  of  women 
workers  affected  by  a  minimum  wage  law,  we  find  a  majority 
of  these  women  living  on  and  below  the  bread  level,  and,  there- 
fore, almost  completely  at  the  mercy  of  the  employer  who  can 
force  upon  them  his  own  schedule  of  wages.  Furthermore,  the 
women  in  industry  are  unorganized  and  cajinot  bargain  collec- 
tively with  their  employers  to  good  effect.  Also  the  abode  of 
many  of  them  is  practically  fixed.  Some  haven't  the  means 
wherewith  to  change  to  another  location,  and  others  have  families 
that  they  must  help  support.  Under  these  conditions  there  can  be 
no  freedom  of  contract — not  as  long  as  an  employer  can  drive  a 
bargain  by  starving  his  employees  into  submission.  The  Supreme 
Court  has  pointed  out  the  fallacy  of  the  freedom  of  contract 
argument  in  very  succinct  terms.  "The  legislature,"  said  the 
Court  in  Holden  v.  Hardy,  "has  also  recognized  the  fact,  which 
the  experience  of  legislators  in  many  states  has  corroborated,  that 
the  proprietors  of  these  establishments  and  their  operatives  do 

1  Barbier  v.  Connolly,  113  U.  S.,  31. 

a  Stone  v.  Mississippi,  101  U.  S..  816.  Other  cases:  Mugler  v.  Kansas, 
123  U.  S.,  412;  Union  Co.  v.  Landing  Co.,  in  U.  S.,  751;  Noble  State 
Bank  v.  Haskell,  219  U.  S.,  104;  Gas  Light  Co.  v.  Light  Co.,  115  U.  S., 
650. 


THE   RATE   OF  WAGES  37 

not  stand  upon  equality,  and  that  their  interests  are,  to  a  certain 
extent,  conflicting.  The  former  naturally  desire  to  obtain  as 
much  labor  as  possible  from  their  employees,  while  the  latter  are 
often  induced  by  the  fear  of  discharge  to  conform  to  regulations 
which  their  judgment,  fairly  exercised,  would  pronounce  to  be 
detrimental  to  their  health  or  strength.  In  other  words,  the 
proprietors  lay  down  the  rules  and  the  laborers  are  practically 
constrained  to  obey  them.  In  such  cases  self-interest  is  often 
an  unsafe  guide,  and  the  legislature  may  properly  interpose  its 
authority.  .  .  .  But  the  fact  that  both  parties  are  of  full  age 
and  competent  to  contract  does  not  necessarily  deprive  the  State 
of  the  power  to  interfere  where  the  parties  do  not  stand  upon 
an  equality,  or  where  the  public  health  demands  that  one  party 
shall  be  protected  against  himself.  The  State  still  retains  an 
interest  in  his  welfare,  however  reckless  he  may  be.  The  whole 
is  no  greater  than  the  sum  of  all  its  parts,  and  when  the  indi- 
vidual health,  safety  and  welfare  are  sacrificed  or  neglected,  the 
State  must  suffer."1  This  case  upheld  a  law  of  Utah  which 
limited  the  hours  of  labor  for  men  employed  in  underground 
mines,  and  was  certainly  a  curtailment  of  the  freedom  of  con- 
tract as  understood  by  those  who  would  put  a  strict  construction 
on  the  Fourteenth  Amendment.  An  Oregon  law,  forbidding  a 
woman  employed  in  a  laundry  to  contract  to  work  more  than  ten 
hours  each  day,  was  also  held  constitutional  by  the  Supreme 
Court.2  The  highest  court  of  the  State  of  Oregon  said  in  the 
recent  case  of  "Stettler  v.  O'Hara:"3  "There  are  many  women 
employed  at  inadequate  wages — employment  not  secured  by  the 
agreement  of  the  worker  at  satisfactory  compensation,  but  at  a 
wage  dictated  by  the  employer.  The  worker  in  such  a  case  has 
no  voice  in  fixing  the  hours  or  wages,  or  choice  to  refuse  it,  but 
must  accept  it  or  fare  worse." 

In  the  economic  sense,  therefore,  as  pointed  out  in  the  pre- 
ceding cases,  there  is  no  real  freedom  of  contract.  On  the  other 
hand,  the  right  to  contract  is  considerably  qualified  as  a  legal 
right.  The  Supreme  Court  has  said  on  this  point :  "It  is  within 
the  undoubted  power  of  government  to  restrain  some  individu- 
als from  all  contracts,  as  well  as  all  individuals  from  some 
contracts.  It  may  deny  to  all  the  right  to  contract  for  the  pur- 
chase or  sale  of  lottery  tickets ;  to  the  minor  the  right  to  assume 


1 169  U.  S.,  397. 
a  Mullet  v.  Oreg 
8  Decided  March  17,  1914 


a  Mullet  v.  Oregon,  208  U.  S.,  412. 


38  PUBLIC   REGULATION   OF 

any  obligations,  except  for  the  necessaries  of  existence;  to  the 
common  carrier  the  power  to  make  any  contracts  releasing  him- 
self from  negligence,  and,  indeed,  may  restrain  all  engaged  in 
any  employment  from  any  contract  in  the  course  of  that  employ- 
ment which  is  against  public  policy.  The  possession  of  this 
power  by  government  in  no  manner  conflicts  with  the  proposi- 
tion that,  generally  speaking,  every  citizen  has  a  right  freely  to 
contract  for  the  price  of  his  labor,  services,  or  property."1  In 
another  case  the  language  of  the  court  is  especially  explicit  and 
should  leave  no  doubt  as  to  its  meaning.  "Freedom  of  con- 
tract," said  the  court,  "is  a  qualified  and  not  an  absolute  right. 
There  is  no  absolute  freedom  to  do  as  one  wills  or  to  contract 
as  one  chooses.  The  guarantee  of  liberty  does  not  withdraw 
from  legislative  supervision  that  wide  department  of  activity 
which  consists  of  the  making  of  contracts  or  deny  to  govern- 
ment the  power  to  provide  restrictive  safeguards.  Liberty  im- 
plies the  safety  from  arbitrary  restraints,  not  immunity  from 
reasonable  regulations  and  prohibitions  imposed  m'tlie  interest 
of" the  community."2  Professor  Westel  Woodbury  Willoughby, 
of  Johns  Hopkins  University,  covered  the  whole  field  when  he 
said:  "A  political  or  constitutional  theory  which  considered  the 
rights  of  the  individual  to  life,  liberty  and  property  as  wholly 
removed,  upon  their  substantive  side,  from  regulation  by  ordinary 
legislative  act  would,  however,  be  destructive  of  efficient  govern- 
ment, if  not  of  political  authority  itself.  It  would  predicate  a 
regime  of  individualism  that  would  scarcely  be  distinguished  from 
anarchy.  From  this  legislative  impasse  we  have  been  saved  by 
the  development  of  the  doctrine  of  what  is  known  as  the  'police 
power'  of  the  State."3 

Class  Legislation.  It  is  further  contended  that  a  minimum 
wage  law  contravenes  the  Fourteenth  Amendment  to  the  Consti- 
tution in  that  it  is  class  legislation,  because  the  order  of  the  Com- 
mission does  not  apply  uniformly  to  all  sections  of  the  State. 
But,  the  fact  that  a  Commission  does  not  fix  wage  rates  for  all 
sections  of  a  State  at  the  same  time  is  not  open  to  a  charge  of 
discrimination  within  the  meaning  of  the  Fourteenth  Amend- 
ment. According  to  this  objection  the  operation  of  the  law 
would  have  to  be  suspended  for  years — until  the  commission 

1  Frisbie  v.  United  States,  157  U.  S.,   165. 

a  Chicago,  B.  &  Quincy  R.  R.  Co.  v.  McGuire,  219  U.  S.,  549- 
3  The  American  Political  Science  Review,  Feb.    1914.     Presidential  Ad- 
dress before  the  Tenth  Annual  Meeting  of  the  American  Political  Science 
Association,  "The  Individual  and  the  State." 


THE   RATE   OF  WAGES  39 

had  made  investigations  and  wage  determinations  for  every  lo- 
cality in  the  State.  It  has  been  held  that  a  railroad  commission 
may  fix  certain  freight  rates  between  certain  specified  points, 
without  at  the  same  time  fixing  similar  rates  for  all  the  points 
of  the  State.1  The  same  rule  should  apply  to  wage  rates. 

Nor  can  the  charge  of  discrimination  be  maintained  on  the 
ground  that  the  rates  vary  in  different  sections  of  the  State.  A 
uniform  State-wide  schedule  of  wages  would  be  the  grossest  of 
injustice.  Under  our  present  laws,  every  employer  affected  by 
a  wage  determination  must  pay  a  "living  wage";  and,  as  the 
cost  of  living,  upon  which  a  living  wage  is  conditioned,  varies 
in  different  sections,  and  in  different  industries  of  the  same  sec- 
tion of  a  State,  simple  justice  demands  that  the  wage  rates 
be  graduated  accordingly.  The  fact  of  a  law  being  general  and 
uniform  is  not  affected  by  the  number  of  persons  within  the 
scope  of  its  operation.2  The  Constitution  does  not  require  that 
a  law  to  be  uniform  must  operate  upon  every  person  in  the  State, 
but  that  it  operates  uniformly  on  each  class.2 

The  claim  of  discrimination  on  the  ground  that  the  act  applies 
only  to  employers  employing  women  and  minors  is  not  sustained 
by  the  rulings  of  the  courts.  That  children  need  special  pro- 
tection is  not  open  to  argument,  and  Justice  Brewer,  in  render- 
ing the  opinion  of  the  Court  in  Muller  v.  Oregon,3  said:  "The 
two  sexes  differ  in  structure  of  body,  in  the  functions  to  be  per- 
formed by  each,  in  the  amount  of  physical  strength,  in  the 
capacity  for  long  continued  labor,  particularly  when  done  stand- 
ing, the  influence  of  vigorous  health  upon  the  future  well-being 
of  the  race,  the  self  reliance  which  enables  one  to  assert  full 
rights,  and  in  the  capacity  to  maintain  the  struggle  for  subsis- 
tence. The  difference  justifies  a  difference  in  legislation,  and 
upholds  that  which  is  designed  to  compensate  for  some  of  the 
burdens  which  rest  upon  her." 

1  Louisville  Co.  v.  Garrett,  34  Sup.  Ct.  R..  48. 

2  McAunich  v.  R.  R.  Co.,  20  Iowa,  343;  Chicago  Co.  v.  Iowa,  94  U.  S., 
163;   Barbier  v.  Connolly,   113  U.  S.,  27;  State  v.  Muller,  48  Ore.,  252. 

3  208  U.  S.,  412. 


40  PUBLIC   REGULATION    OF 


DELEGATION  OF  LEGISLATIVE  POWER 

One  of  the  principal  reasons  for  holding  the  Minnesota  mini- 
mum wage  law  unconstitutional  was  that,  in  the  opinion  of  the 
Court,  it  delegates  legislative  power  to  an  appointive  commis- 
sion.1 It  is  a  familiar  rule  of  law,  based  upon  the  theory  of  the 
separation  pf  governmental  powers,  that  the  legislature  cannot 
delegate  any  of  its  constitutional  powers  to  enact  laws,  but  that 
all  strictly  legislative  functions  must  be  exercised  exclusively  by 
the  legislative  branch  of  the  government.  But  the  defense  is  a 
flat  denial  of  the  charge  that  the  Commission  exercises  delegated 
legislative  powers  within  the  meaning  of  our  Federal  and  State 
Constitutions.  The  Commission  is  an  administrative  body  carry- 
ing out  the  will  of  the  legislature.  It  does  not  make  the  law;  it 
merely  determines,  under  authority  of  the  act  itself,  when  and 
where  the  provisions  of  the  law,  as  determined  by  the  legislature, 
apply.  "The  test  and  distinction,"  said  the  Indiana  Supreme 
Court  in  1900, 2  "whether  a^power  is  strictly  legislative,  or  whether 
it  is  administrative,  and  merely  relates  to  the  execution  of  the 
statute  law,  'is  between  the  delegation  of  power  to  make  the  law, 
which  necessarily  involves  a  discretion  as  to  what  it  shall  be,  and 
conferring  authority  or  discretion  as  to  its  execution,  to  be  exer- 
cised under  and  in  pursuance  of  the  law.  The  first  cannot  be 
done.  To  the  latter  no  valid  objection  can  be  made.'"  Justice 
Moore,  speaking  for  the  Supreme  Court  of  Oregon  in  a  case  up- 
holding the  constitutionality  of  the  State  Railroad  Commission 
Act,  said.  "The  rule  is  universal  that,  as  a  legislative  assembly 
exercises  an  authority  conferred  by  the  Constitution,  it  cannot 
delegate  the  power  to  enact  laws.  It  may,  however,  direct  that 
the  application  of  a  statute  to  a  designated  district  or  to  a  speci- 
fied state  of  facts  shall  depend  upon  the  existence  of  certain  con- 
ditions to  be  ascertained  and  determined  in  a  particular  manner."3 
For  instance,  the  Federal  Supreme  Court  has  held  that  the  Con- 
gress may  delegate  to  the  Secretary  of  the  Treasury  the  power 
to  prescribe  the  regulations  under  which  one  of  its  acts  shall  oper- 
ate, and  to  determine  whether  or  not  such  regulations  can  be 


1  Ramer  Co.  v.  Evans,   Minnesota  District  Court,   Second  Judicial  Dis- 
atlin. 
121.   Also,  Cincinnati  Co.  v.  Connors,  i  Ohio 


trict,  Nov.  23,   1914.    Judge  Catlin. 
*  Blue  v.  Beach,  155  Ind., 


State,  77-83. 

3  State  v.  Corvallis  Co.,  59  Ore.,  450. 


THE   RATE   OF   WAGES  41 

I 

made.1  In  line  with  these  decisions  is  a  minimum  wage  law  which 
delegates  to  a  Commission  the  power  to  determine  when  the  facts 
or  contingencies,  upon  which  the  action  of  the  act  is  made  to  de- 
pend, exist. 

It  is  contended  that  the  determination  of  maximum  hours  and 
minimum  wages  is  a  legislative  question  of  judgment  and  dis- 
cretion, and  not  an  administrative  question  of  fact.  But,  from 
the  legal  point  of  view,  the  Commission  does  not  determine 
either  the  hours  of  labor  or  the  rate  of  wages.  The  act  itself 
sets  the  standard,  and  all  the  Commission  does  is  to  apply  this 
standard  to  certain  sets  of  facts.  The  minimum  wage  shall  be 
the  "necessary  cost  of  proper  living  and  to  maintain  the  health 
and  welfare."2  Is  not  the  determination  of  what  is  necessary  "to 
maintain  the  health  and  welfare"  of  women  in  the  various  occu- 
pations a  question  of  fact?  The  courts  have  held  that  the  deter- 
mination by  a  Railroad  Commission  of  what  is  or  what  is  not 
"adequate  service"  is  a  question  of  fact  to  be  determined  by  the 
Commission.3  There  is  no  practical  distinction  between  the  two 
cases.  A  similar  parallel  can  be  drawn  between  the  determina- 
tion of  wage  rates  by  a  Minimum  Wage  Commission  and  the 
fixing  of  freight  rates  by  a  Minimum  Wage  Commission  and  the 
state  Commerce  Commission.  The  various  Railroad  Commission 
Acts  usually  set  a  standard  of  rates  by  requiring  that  they  be 
"reasonable";  the  Minimum  Wage  Laws  set  a  wage  standard  by 
requiring  that  it  be  "a  living  wage."  When  a  Railroad  Commis- 
sion determines  what  rates  are  "reasonable,"  it  does  not  exercise 
any  legislative  discretion — it  merely  applies  the  standard  of 
"reasonableness"  to  a  given  set  of  facts  ;4  when  a  Minimum  Wage 
Commission  determines  what  is  a  "living  wage"  for  the  various 
localities  or  industries  of  a  State,  it  exercises  no  independent 
action  of  its  own,  no  legislative  function,  it  carries  out  a  com- 
mand of  the  legislature.  In  both  cases  the  legislature  itself 
determined  that  the  rates  should  be  "reasonable"  and  the  wage  a 
"living  wage."5  The  courts  have  pointed  out  that  "half  the 
statutes  on  our  books  are  in  the  alternative,  depending  upon  the 
discretion  of  some  person  or  persons  to  whom  is  confided  the 

1  Dunlap  v.  United  States,  173  U.  S.,  65.     The  same  rule  was  laid  down 
in  Union  Co.  v.  U.   S.,  27   Sup.  Ct.   Rep.,  367. 

2  The  California  Minimum  Wage  Law. 

3  Minneapolis    Co.    v.    R.    R.    Commission,    116    N.    W.,   905.      Brief   for 
Respondents  in  Stettler  v.   O'Hara,   Supreme  Court  of  Oregon,  p.  00-01. 

4  State  v.  C.  M.  &  St.  P.  Ry.  Co.,  38  Minn.,  295. 

8  Brief  for  Respondents  in  Stettler  v.  O'Hara.  Supreme  Court  of 
Oregon,  1913,  p.  88. 


42  PUBLIC   REGULATION   OF 

duty  of  determining  whether  the  occasion  exists  for  executing 
them.  But  it  cannot  be  said  that  the  exercise  of  such  discretion 
is  the  making  of  the  law."1 

Furthermore,  it  is  quite  incorrect  to  contend  that  the  fact 
that  a  power  vested  in  an  administrative  commission  is  legisla- 
tive in  character  is  prima  facie  evidence  that  the  exercise  of  the 
power  is  not  constitutional.  The  absolute  line  that  Montesquieu 
drew  between  the  three  departments  of  government  has,  in  prac- 
tice, been  widened  into  an  indistinct  buffer  zone  where  each  of 
the  departments  participates,  more  or  less,  in  the  work  of  the 
others.  The  courts  have  always  recognized  this  overlapping  of 
powers.  "The  executive,"  said  the  Federal  Supreme  Court  in 
Watkins  v.  Holman,2  "in  acting  upon  claims  of  services  rendered, 
may  be  said  to  exercise,  if  not  in  form,  in  substance,  a  judicial 
power.  And  so  a  court,  in  the  use  of  a  discretion  essential 
to  its  existence,  by  the  adoption  of  rules  or  otherwise,  may  be 
said  to  legislate.  A  legislature,  too,  in  providing  for  the  pay- 
ment of  a  claim,  exercises  a  power  in  its  nature  judicial;  but  this 
is  coupled  with  the  paramount  and  remedial  power."  The  Min- 
nesota Supreme  Court  has  said  on  this  point :  "The  principle 
is  repeatedly  recognized  by  all  courts  that  the  legislature  may 
authorize  others  to  do  things  which  it  might  properly,  but  cannot 
conveniently  or  advantageously,  do  itself.  .  .  .  The  statute  books 
are  full  of  legislation  granting  to  officers  large  discretionary 
powers  in  the  execution  of  laws  the  validity  of  which  has  never 
been  successfully  assailed."3 

If,  then,  there  is  no  absolute  separation  of  the  powers  of 
government,  and  if  the  legislative  department  may  authorize  the 
judicial  department  to  perform  executive  functions,  and  the 
judiciary  may  assume  such  obligations,  in  order  to  assist  the 
legislature  while  acting  under  its  "paramount  and  remedial" 
power,  why  cannot  the  legislature,  having  a  similar  end  in  view, 
vest  in  an  administrative  commission  powers  wi-iirh  in  their 
nature  are  legislative?  When  a  legislature  leglislates  for  the 
public  welfare,  its  discretion  cannot  be  interfered  with  by  the 
courts  unless  its  action  is  palpably  in  excess  of  its  constitutional 
powers. 

1  Moers   v.    Reading,    21    Pa.,   202,    quoted  by  the   court   in   Dowling   v. 
Lancashire  Co.,  31  L.  R.  A.,  112;  and  in  the  Brief,  supra. 
3  16  Peters,  60. 
3  State  v.  C.  M.  &  St.  P.  Ry.  Co.,  38  Minn.,  295. 


THE   RATE   OF   WAGE£  43 


LEGISLATIVE    DISCRETION    AND    JUDICIAL    SUPER- 
VISION 

From  the  very  nature  of  the  case,  the  legislature  must  possess 
the  choice  of  means  for  carrying  into  execution  some  power  or 
duty  vested  in  or  imposed  upon  it.1  The  legislature,  therefore, 
possesses  wide  discretionary  powers  over  which  the  courts  have 
little  or  no  control.  Unless  an  act  of  the  legislature  is  unmis- 
takably and  palpably  in  excess  of  its  constitutional  powers,  the 
courts  are  powerless  to  interfere.2  Said  the  Supreme  Court  in 
Ogden  v.  Saunders :  "It  is  but  a  decent  respect  due  to  the 
wisdom,  the  integrity  and  the  patriotism  of  the  legislative  body 
by  which  any  law  is  passed,  to  presume  in  favor  of  its  validity, 
until  its  violation  of  the  constitution  is  proved  beyond  all  rea- 
sonable doubt."3  In  another  case  the  same  Court  said :  "The 
legislature,  being  familiar  with  local  conditions,  is,  primarily, 
the  judge  of  the  necessity  of  such  enactments.  The  mere  fact 
that  a  court  may  differ  with  the  legislature  in  its  views  of  public 
policy,  or  that  judges  may  hold  views  inconsistent  with  the 
propriety  of  the  legislation  in  question,  affords  no  ground  for 
judicial  interference,  unless  the  act  in  question  is  unmistakably 
and  palpably  in  excess  of  legislative  power.  ...  If  there  ex- 
isted a  condition  of  affairs  concerning  which  the  legislature  of 
the  State,  exercising  its  conceded  right  to  enact  laws  for  the  pro- 
tection of  the  health,  safety  or  welfare  of  the  people,  might  pass 
the  law,  it  must  be  sustained ;  if  such  action  was  arbitrary 
interference  with  the  right  of  contract  to  carry  on  business,  and 
having  no  just  relation  to  the  protection  of  the  public  health,  the 
act  must  fail."*  On  the  discretionary  powers  of  the  legislature 
when  dealing  with  employment  the  Court  has  said  further :  "The 
legislature,  provided  its  acts  within  its  constitutional  authority, 
is  the  arbiter  of  the  public  policy  of  the  State.  In  dealing  with 
the  relation  of  the  employer  and  the  employee,  the  legislature  has 
necessarily  a  wide  field  of  discretion  in  order  that  there  may 
be  suitable  protection  of  health  and  safety,  and  that  peace  and 

1  United  States  v.  Fisher,  2  Cr.,  358;  McCulloch  v.  Maryland,  4  Wh., 
415;  Briscoe  v.  Bank  of  Kentucky,  n  Pet.,  257. 

2Jacobson  v.  Massachusetts,  25  Sup.  Ct.  Rep.,  358;  Mugler  v.  Kansas, 
123  U.  S.,  623. 

8  Wheaton,  270.     See  also  Otis  v.  Parker,  187  U.  S.,  606. 

4  McLean  v.  Arkansas,  211  U.  S.,  547. 


44  PUBLIC   REGULATION    OF 

good  order  may  be  promoted  through  regulations  designed  to 
insure  wholesome  conditions  of  work  and  freedom  from  oppres- 
sion."1 

A  very  ingenious  argument,  devised  to  put  a  sweeping  limita- 
tion on  this  discretionary  power  of  the  legislature,  is  advanced 
by  a  distinguished  Minneapolis  attorney.  He  argues  as  follows : 
"The  exercise  of  the  police  power  in  such  cases  is  to  be  deter- 
mined by  the  nature  and  extent  of  the  peculiar  hazards  to  health 
or  safety  arising  out  of  the  connection  between  the  particular 
class  of  employees  in  question  with  the  particular  occupation  in 
question.  If,  from  such  connection,  standing  by  itself  and  in- 
dependent of  other  causes  and  conditions,  there  does  not  arise 
peculiar  conditions  menacing  the  health,  comfort  and  safety  of 
the  employees,  then  there  is  no  ground  for  the  exercise  of  the 
police  power  in  connection  with  such  occupation."2  Accord- 
ing to  this  argument,  it  would  seem  that  a  girl  who  is  engaged 
in  a  perfectly  respectable  and  hygienic  employment  is  not  a 
proper  subject  for  State  protection  even  if  it  be  conclusively 
shown  that,  because  of  an  inadequate  wage,  she  is  forced  to 
take  lodgings  in  a  tenement  house  that  is  neither  respectable 
nor  hygienic,  to  live  in  constant  need  of*  nourishing  food,  and 
to  forego  medical  aid  when  she  really  is  in  need  thereof. 
It  may  be  admitted  that  a  woman  worker  is  actually  deteriora- 
ting in  body  and  mind  for  want  of  the  necessaries  of  life, 
yet,  unless  the  peculiar  nature  of  the  employment  itself  di- 
rectly menaces  her  health  or  safety,  the  police  power  cannot 
be  invoked  to  compel  her  employer,  who  is  using  her  energy,  to 
pay  her  a  living  wage.  Is  this  a  case  in  point:  A  child  is  ill 
with  penumonia,  and  the  guardian  proceeds  to  administer  a 
remedy  which  certain  great  physicians  in  Europe  have  used  with 
reasonable  success  after  all  others  have  failed ;  but,  in  the  mean- 
time, a  friend  of  the  undertaker  comes  in  and  insists  that  this 
particular  remedy  should  not  be  used  unless  the  disease  has  been 
contracted  in  a  certain  definite  way.  Poverty  is  a  social  con- 
dition that  breeds  physical  and  moral  disease,  and  if  the  employer 
is  responsible  for  poverty — and  the  facts  show  that  he  sometimes 
is — has  not  the  State  got  just  as  good  a  case  as  if  the  peculiar 
nature  of  the  employment  itself  endangered  the  public  health 
and  safety?  If  not,  the  employers  of  a  locality  can  shift  prac- 
tically the  whole  burden  for  improvements,  necessitated  by  a 

1  Chicago.  B.  &  Quincy  R.  R.  Co.  v.  McGuire,  219  U.  S.,  549. 
8  Rome  G.  Brown,  "The  Minimum  Wage,"  p.  42. 


THE   RATE   OF   WAGES       _  45 

health  regulation,  to  their  employees  by  cutting  wages,  and  this 
is  precisely  what  they  do.  They  satisfy  the  health  and  safety 
regulations  in  a  way  and  then  proceed  to  cut  wages  just  as  low 
as  our  very  imperfect  competitive  system  will  permit,  disclaiming 
all  responsibility  for  the  injurious  effects  of  these  starvation 
wages  upon  the  health  and  morals  of  their  employees  and  throw- 
ing the  whole  burden  upon  society. 

The  trouble  with  the  above  quoted  argument  is  that  it  is  out 
of  tune  with  our  whole  social  program,  and  it  must  give  way 
to  a  counter  argument  that  is  stated  in  terms  of  social  process. 
Every  progressive  measure  on  our  statute  books  has  had  to  run 
the  gauntlet  of  arguments  similar  to  those  so  ably  presented 
there.  The  conservative  forces,  disguised  under  divers  cloaks 
and  armed  to  the  teeth  with  "Let  good  enough  alone"  arguments, 
are  jealously  guarding  every  public  and  private  avenue  of 
thought  and  action,  lest  progressive  heresies  be  disseminated 
among  our  people,  and  the  established  order  of  things  be,  in 
consequence,  suffered  to  change.  Progress  is  made  not  because 
of  these,  but  in  spite  of  them. 


CHAPTER  III. 
THE  TEST  OF  EXPERIENCE 

There  are  objections  urged  against  minimum  wage  legislation 
that  cannot  be  disposed  of  as  easily  as  can  the  constitutional 
difficulties  considered  in  the  preceding  chapter.  If  the  legal 
regulation  of  the  rate  of  wages  is  otherwise  highly  desirable, 
the  fact  that  it  might  contravene  the  Constitution  would  simply 
be  conclusive  proof  that  the  best  interests  of  the  State  demand 
that  we  should  entertain  no  sentimental  scruples  about  changing 
the  Constitution;  the  important  consideration  is  whether  or  not 
such  regulation  is  desirable.  To  show  that  it  is  not  desirable 
several  practical  objections  are  urged.  For  instance,  it  is  con- 
tended, and  not  without  effect,  that  a  minimum  wage  will  dis- 
courage industrial  prosperity  by  driving  certain  industries  out 
of  the  state;  that  it  will  enhance  the  vexing  problem  of  unem- 
ployment; and  that  it  will  reduce  the  general  level  of  wages  by 
making  the  minimum  wage  the  maximum.  To  disprove  these 
allegations,  the  friends  of  the  legislation  point  to  the  experience 
of  Australasia  and  England.  As  the  laws  have  been  in  opera- 
tion but  a  few  years,  however,  any  positive  conclusion  as  to  how 
they  really  have  worked,  and  how  they  will  operate  in  the  future, 
must  needs  be  tentative;  but,  the  statistical  data  at  hand  is 
valuable  in  pointing  out  a  tendency,  and  this  tendency,  it  must 
be  admitted,  is  favorable  to  the  laws. 

Practicability.  First  of  all,  the  laws  work.  They  are  enforce- 
able and  are  enforced  apparently  with  little  friction.  The  official 
reports  from  Victoria  are  to  the  effect  that  "the  working  of  the 
determinations  is  harmonious  and  satisfactory,"1  that  "the  deter- 
minations are  well  observed,  and  prosecutions  for  breaches  are 
few,  misunderstandings  being  usually  responsible."2  The  rapid 
growth  of  the  number  of  boards  and  awards  is  an  indication  of 
the  workability  of  the  acts.  In  June  1912,  there  were,  in  Victoria, 

1  Report  of  Chief  Inspector  of  Factories  of  Victoria,  1909,  p.  72. 

2  Official   Year   Book  of  the  Commonwealth  of  Australia,    1901-1912,   p. 
1041. 


PUBLIC   REGULATION   OF  RATE  OF  WAGES     47 

in  Wage  Boards  affecting  130,000  employees,  and  65  determina- 
tions in  force;  in  New  South  Wales,  in  December,  1912,  there 
were  157  Industrial  Boards  and  339  awards  in  force;  in  South 
Australia,  in  December  1912,  56  trades,  including  25,000  em- 
ployees, were  under  Boards,  and  49  determinations  were  in 
force;  in  Tasmania,  where  the  law  was  put  into  operation  in  1911, 
the  Parliament  had,  by  the  30th  of  June  1912,  authorized  the 
appointment  of  19  Boards,  and  n  of  them  had  made  determina- 
tions.1 

Apparently  serious  administrative  difficulties  cannot  be  urged 
as  a  good  objection  to  minimum  wage  legislation. 

Effects  on  Industry.  Is  minimum  wage  legislation  destructive 
to  commercial  prosperity?  Not  in  Australasia,  if  available  testi- 
mony and  statistics  are  reliable.  The  following  figures,  taken 
from  the  census  report  of  New  Zealand,2  should  satisfy  the  most 
sanguine  proponents  of  minimum  wage  legislation. 


Number  of  establishments3.  .  . 
Hands  employed 
Males    

April,  1896 
2,459 

22,986 

March,  1901 
3,163 

35.438 

Increase 

704 

12,452 

4,403 

6,288 

1,885 

Totals4   

27,389 

41,726 

14,337 

28  096 

•»Q  052 

10,956 

Total  approximate  value  of 
Land                                        . 

£i  061  080 

£  I   7  I  ?  254 

£    649,265 

Buildings    

1»743»073 

2,419,903 

646,730 

2  088  055 

3826  574 

3-77  610 

Totals    £5,796,017  £7,959,631  £2,163,614 

The  value  of  the  output  of  manufactures  increased  from 
£9,549,000  in  1895  to  £17,141,000  in  1900;  the  external  trade 
grew  from  £16,000,000  to  more  than  £23,000,000  in  1901. 

"In  June  1900,"  says  Mr.  Reeves,5  "after  this  'most  prejudi- 
cial' law  had  been  at  work  nearly  five  years,  the  Canterbury 
Chamber  of  Commerce,  one  of  the  chief  mercantile  chambers 
in  the  Colony,  published  these  sentences  in  the  forty-first  annual 
report : 

"  'Probably  at  no  period  in  the  history  of  New  Zealand  can  we 

1  Official  Year   Book  of  the   Commonwealth  of  Australia,    1901-1912,   p. 
1041.      According  to   the    Report   of   the   Chief   Inspector   of   Factories   for 
Victoria^    for    1912,    there    were    131    special    boards,    affecting    150,000    em- 
ployees in  1912. 

2  Reeves,   William   P.,   "State   Experiments   in   Australia   and  New  Zea- 
land," II,  p.   137-8. 

3  Omitting    Government    railway    workshops    and    Government    printing 
office. 

4  Excluding    dressmaking,    tailoring,     shirtmaking,     millinery,     etc.,     for 
which  there  were  no  returns  in  1896. 

0  Reeves,  William  P.,  "State  Experiments  in  Australia  and  New  Zea- 
land," II,  p.  105-6. 


48  PUBLIC   REGULATION   OF 

find  such  unmistakeable  signs  of  general  prosperity  as  we 
have  experienced  during  the  past  year.  Our  industries,  almost 
without  exception,  have  had  their  capacities  taxed  to  the  very 
utmost,  skilled  labor  has  been  practically  unobtainable,  ana, 
except  in  the  case  of  one  or  more  exceptional  trades,  there  is 
every  prospect  for  a  continued  demand  for  the  productions  01 
New  Zealand  labor.  The  number  of  workers  employed  in  our 
factories  in  the  year  1895  was  29,879.  The  number  has  steadily 
increased  until,  at  3ist  March  1900,  the  number  employed  reached 
48,938,  being  an  increase  of  19,059,  or  nearly  64  per  cent  in  five 
years.  No  stronger  proof  can  be  required  of  the  forward  march 
of  our  industrial  army,  and  it  is  satisfactory  to  note  that  the 
industries  that  have  been  benefited  most  by  the  wave  of  pros- 
perity which  we  are  now  enjoying  have  been  able  to  give  to  the 
workers  higher  wages  and  improved  conditions  of  employment.' " 
A  similar  condition  of  affairs  is  reported  from  Victoria.  For 
instance,  the  number  of  factories  increased  steadily  from  3,370 
in  1896  to  7,750  in  1912;  and  the  number  of  persons  employed 
increased  from  40,814  in  1896  to  104,746  in  I9I2.1  Victor  S. 
Clark  says:2  "The  impression  the  country  makes  upon  a  visitor 
is  not  that  of  a  land  where  industry  is  paralyzed  and  business 
stagnated,  but  rather  the  reverse.  Permanent  and  costly  build- 
ings are  being  erected  in  the  larger  cities,  public  improvements 
are  going  forward,  the  wharves  are  crowded  with  shipping,  the 
railway  service  is  fully  occupied.  .  .  .  There  are  few  evidences 
of  excessive  unemployment.  To  a  person  studying  in  Australia, 
the  economic  argument  that  a  country  will  be  industrially  ruined 
by  state  regulation  is  not  convincingly  demonstrated."  Sidney 
Webb  said,  in  1912,  that  in  the  sixteen  years  since  the  minimum 
wage  law  went  into  effect  in  Victoria,  the  number  of  factories 
had  increased  by  no  less  than  60  per  cent,  and  the  number  of 
workers  in  them  had  more  than  doubled.9  And  Philip  Snowden 
adds  to  this  :4  "The  prosperity  of  the  colony  has  been  marked 
in  the  years  which  have  passed  since  this  legislation  was 
first  enacted.  Since  1896  (the  year  when  the  first  Act  was 
passed)  the  revenue  of  Victoria  has  risen  from  £6,400,000  to 

1  Report   of  the   Chief  Inspector   of  Factories   and   Shops   of  Victoria, 
1913,  p.  5. 

2  Victor  S.  Clark,  "The  Labor  Movement  in  Australia,"  p.  219. 

3  Sidney   Webb,    "The   Economic   Theory  of  a   Legal   Minimum    Wage," 
p.   5-6. 

*  Philip  Snowden,  "The  Living  Wage,"  p.  113,  114.  For  representative 
opinions  see  Appendix  to  Briefs  in  the  case  of  Stettler  v.  O'Hara,  Oregon 
Supreme  Court,  1913,  p.  162-169. 


THE  RATE  OF  WAGES  49- 

£10,700,000.  The  savings  bank  investments  have  risen  from 
£4,300,000  to  £15,400,000.  The  receipts  from  the  state  railways 
have  increased  from  £1,400,000  to  £4,443,000.  The  number  of 
marriages  have  risen  from  4,700  to  10,200." 

Without  speculating  on  the  probable  or  possible  part  that  the 
minimum  wage  laws  have  played  in  this  extraordinary  expansion 
in  Australasia,  and  even  without  insisting  that  they  have  played 
any  part  at  all,  is  it  not  fair  to  assume  that  the  presumption  is  in 
favor  of  the  laws  and  that  the  burden  of  proof  has  been  shifted 
to  the  opponents  thereof?  This  data  may  not  prove  the  case 
for  minimum  wage  legislation,  but  it  is  hard  to  see  how  it  can 
be  used  to  establish  a  case  against  such  legislation. 

Effects  on  Wages.  State  regulation  has  practically  eliminated 
sweating  in  Australasia,  according  to  the  reports.  According  to 
Professor  M.  B.  Hammond  of  Ohio  University,  the  secretary 
of  the  Anti-Sweating  League  of  Victoria,  Samuel  Mauger,  told 
him  that  sweating  no  longer  exists  in  Victoria,  and  adds  that 
"his  statements  are  confirmed  by  factory  inspectors  and  various 
trade  union  secretaries."1  Corroborating  testimony  is  not  want- 
ing. "The  question  whether  the  operation  of  the  acts  has  bettered 
the  monetary  position  of  the  operative,"  say  the  official  Year 
Book  of  Australia,2  "may  be  answered  in  the  affirmative.  Start- 
ing from  the  lowest  point,  the  provision  of  an  absolute  minimum 
wage  per  week  has  stopped  one  form  of  gross  sweating.  .  .  . 
The  average  wage  of  females  in  the  clothing  trade  in  1897  was 
ten  shillings  and  ten  pence  a  week ;  there  were,  however,  in  that 
year  4,164  females  receiving  less  than  one  pound  per  week,  and 
their  average  was  eieht  shillings  and  eight  pence.  It  was  almost 
a  revolution  when  a  minimum  wage  of  sixteen  shilling  per  week 
of  forty-eight  hours  was  fixed  by  the  Boards,  when  pieceworkers' 
rates  were  fixed  to  ensure  a  similar  minimum,  and  when  out- 
workers were  placed  on  the  level  of  pieceworkers."  The  Chief 
Inspector  of  Factories  of  Victoria  reported  in  1900:*  "I  venture 
to  affirm  that  there  is  now  no  sweating  in  the  clothing  trade  in 
the  State  of  Victoria."  The  following  statistics  on  the  clothing 
trade  are  taken  from  the  Official  Year  Book:4 


B.  Hammond,  "Where  Life  is  More  Than  Meat,"  Survey,  Febru- 
t6. 
ial    Year    Book    of    the    Commonwealth    of    Australia,    1901-1912, 

8  Report  of  Chief  Inspector  of  Factories  of  Victoria,   1900,  p.   17. 

4  Official    Year   Book   of  the   Commonwealth     of    Australia,     1901-1912, 


ary  6,   1916. 

2  Offic'  - 
p.    1041. 

»  Re 

«0fl 
p.  1042. 


50  PUBLIC   REGULATION    OF 

Dress 

Mantle  and 

Underclothing          Shirt  Trade 

1897  No.     Av.     Wage     No.  Av.  Wage 

£  s.    d.  £  s.    d. 
Workers   16  years  and  over  receiving  un- 
der   £i  per  week 4*164           8     8         435         12     3 

Workers  16  years  and  over  receiving    £i 

and  over    593     191         144     i     3  10 

Dress  and  Underclothing 

Mantle  Trade  Shirt  Trade  Trade 

1911                                No.  Av.  Wage  No.  Av.  Wage  No.  Av.  Wage 

£  s.    d.                  £  s.    d.  £  s.    d. 
Females     at     minimum 

wage  and  over 3,490     i     511  318     i     3     8  826     138 

Pieceworkers   73     i     on  883     112  185         19     9 

In  Tasmania,  continues  the  report,  where  there  was  no  such 
law  in  operation  in  1911,  the  female  workers  in  clothing  fac- 
tories, 20  to  26  year  old,  who  had  been  in  the  service  from  three 
to  five  years,  received  123  per  week. 

But  it  is  not  the  sweated  workers  alone  that  have  been  bene- 
fited by  a  minimum  wage ;  wages  have  increased  all  along  the 
line.  "Except  in  three  occupations,"  said  Victor  S.  Clark  in 
JQO5,1  "where  there  has  been  a  recent  increase  in  the  proportion 
of  female  and  juvenile  workers,  the  rate  of  wages  has  uniformly 
risen  since  the  boards  went  into  operation."  This  statement  is 
followed  by  the  table  on  page  51  taken  from  the  Report  of  the 
State  Inspector  of  Factories  for  the  year  ending  December  31, 
1902. 

According  to  the  official  Year  Book,2  "the  relative  increase 
from  1891  to  1911  was  greatest  in  Victoria  and  South  Australia, 
and  least  in  Tasmania,  but  in  the  last  named  State  there  was  a 
remarkable  increase,  amounting  to  nearly  17  per  cent  in  1912. 
This  is,  no  doubt,  accounted  for  to  a  large  extent  by  the  fact  that 
the  wages  board  system  was  first  adopted  in  Tasmania  in  that 
year." 

When  interpreting  these  figures,  however,  it  should  be  re- 
membered that  they  represent  the  nominal  rather  than  the 
effective  wage  increase.  The  increase  in  wages  has  been  ac- 
companied, in  most  cases,  by  an  increase  in  the  cost  of  living; 
so  that  the  increase  in  real  wages  can  be  safely  assumed  to  be 
considerably  less  than  the  foregoing  figures  would  seem  to  in- 
dicate. One  official  report8  from  Australia  is  to  the  effect  that 

1  Bulletin  of  the  U.  S.  Bureau  of  Labor,  No.  56,  p.   70. 

2  Official    Year    Book    of    the    Commonwealth   of  Australia,    1901-1912, 
p.   1129. 

3  Ibid.,  p.  1154. 


THE   RATE   OF   WAGES 


Average  Weekly  Wages  in  Trades  under  Board  Determinations 
in  1902  as  compared  with  Average  Wages  before  Determina- 
tions Went  into  Effect. 

Before 
Determina- 
tion Went 
into  Effect 
$  7-83 

4.81  5.37 

5.64  6.87 

10.42 
9-63 
11.13 


Trade 

Bedstead  makers    

Bookbinders     

Bootmakers    

Breadmakers    

Brewers    

Brickmakers     

Brushmakers    

Butchers    

Cigar  makers    

Clothing   makers    (men's) 

Confectioners    

Coopers     

Engravers 

Jewelers    

Maltsters    

Mantlepiece   makers 

Millet  broommakers 

Pastry   cooks    

Plate  glass  makers 

Potters 

Printers    (city)     

Printers   (country)    

Saddlers   

Shirtmakers    

Tanners    

Underclothing  makers    . . 

Wickerworkers    

Woodworkers    

Woolen  goods   


1902 

$  8.36 


7.91 
8.35 

10.12 
5.62 
9-17 
7.36 
4.85 
4.12 

8.66 
S-iS 
8.23 

10.00 

8.15 
6.79 
7-50 
6.69 
6.83 
8.96 
7-54 
6-59 
3-Si 
7-73 
2.74 
5.58 
8.07 
4-97 


8.09 

5-45 

5-09 

10.56 

4.62 

10.02 

10.97 

10.67 

8.13 
6.96 
8.68 
8.84 
9.49 


3.08 

6.37 

10.63 

5-19 


Increase 
$   -53 
.56 
1.23 
2.51 
1.28 
I.OI 

•85 

.64 

•73 

.60 

•97 
1.90 

•S31 
1.79 

•97 
2.52 
1.34 

•  541 
1.99 

2.01 

.53 
•Si 

i.95 

.021 
.91 

•34 

•79 

2.56 

.22 


nominal  wages  increased  nearly  18  per  cent  between  1901  and 
191 1,  the  cost  of  living  13.6  per  cent,  and  effective  or  real  wages 
5.8  per  cent;  another  report2  shows  that  there  was  a  substantial 
increase  in  wages  in  the  baking  and  clothing  trades  in  1898, 
with  no  increase  in  the  price  of  bread  and  clothing.  Sidney  and 
Beatrice  Webb  wrote  in  1902,  in  the  preface  to  "Industrial  De- 
mocracy," of  their  visit  to  Melbourne  in  1898:  "We  could 
find  no  evidence  that  prices  had  risen,  and  we  were  informed 
by  employers  that  they  had  not  done  so."  The  statistics  on  the 
subject  are  by  no  means  complete;  so  that  an'  approximation  is 
perhaps  the  nearest  we  can  get  to  an  exact  mathematical  com- 
putation of  the  increase  in  effective  wages  in  the  several  indus- 
tries affected  by  minimum  wage  determinations.  The  signifi- 
cant point  is,  however,  that  the  official  reports  leave  a  comfortable 
margin  of  real  increase  for  the  laws  to  rest  their  case  upon. 

1  Decrease. 

2  Report  of  Chief  Inspector  of  Factories  of  Victoria,   1899.     Henry  D. 
Lloyd,  ''Newest  England,"  p.  238. 


52  PUBLIC   REGULATION   OF 

In  New  Zealand  conditions  have  been  much  the  same  as  in 
Australia.  The  following  table,  taken  from  the  census  returns 
for  1909,  shows  the  wage  increase  between  1896  and  1901 11 

Manufactures  and  Works. 

Wages   paid  April,  1896         March,  1911  Increase 

To  Males   £1,776,076         £2,895,279         £1,119,203 

To  Females    131,516  203,282  71,766 


Totals    £1,907,592          £3,098,561          £1,190,969 

These  figures,  when  translated  into  average  annual  wages, 
show  that  this  average  annual  wage  for  men  in  1895  was  £77.2, 
and  £81.7  in  1900;  for  females  it  was  £29.8  in  1895,  and  £32.3  in 
I9OO.2 

The  fear  that  the  minimum  wage  would  become  the  maximum 
has  proven  groundless,  if  the  experience  of  Australasia  may  be 
taken  as  a  criterion.  Professor  Hammond  says  :3  "Victorian 
statistics  on  this  point  are  lacking,  but  in  New  Zealand  where 
minimum  wages  are  fixed  by  the  arbitration  court,  statistics  as 
to  wages,  tabulated  in  1909  by  the  Labor  Department,  showed 
that  in  the  four  leading  industrial  centers  of  the  Dominion  the 
percentage  of  workers  in  trades  where  a  legal  minimum  wage 
was  fixed  who  received  more  than  the  minimum  varied  from 
51  per  cent  in  Dunedin  to  61  per  cent  in  Auckland.  There  is  no 
reason  to  think  that  a  dissimilar  situation  would  be  revealed  by 
a  statistical  investigation  in  Victoria."  "In  the  bootmaking  trade, 
for  instance,"  says  another  report,4  "in  Auckland  66  per  cent,  in 
Wellington  85^2  per  cent,  in  Christchurch  66  per  cent,  and  in 
Dunedin  50  per  cent  of  the  workers  receive  wages  above  the 
minimum  wage.  In  Auckland  91  per  cent,  in  Wellington  57^ 
per  cent,  in  Christchurch  50  per  cent  and  in  Dunedin  26  per  cent 
of  the  cabinet  workers  receive  above  the  minimum  named  in 
the  award.  Plumbers  and  gasfitters  receiving  "wages  above  the 
minimum  are :  In  Auckland  66  per  cent,  in  Wellington  19  per  cent, 
in  Christchurch  84  per  cent,  in  Dunedin  59  per  cent." 

Professor  Hammond's  statement  that  Victorian  statistics  are 
lacking  is  not  strictly  correct.  Says  William  P.  Reeves  :5  "The 
Chief  Inspector  of  Factories  (of  Victoria),  writing  in  May  1902, 

1  Reeves.   William   P.,   "State   Experiments  in   Australia   and   New   Zea- 
land." II,  p.   136. 

2  For  the  number  of  workers  in  1896  and  1901  see  table  on  p.  47. 

3  Survey,  February  6,   1915. 

4  Report  of  the  New  Zealand  Department  of  Labor,   1900    p.   13. 

5  "State  Experiments  in  Australia  and  New  Zealand,"  II,  p.  62. 


THE  RATE   OF  WAGES  S3 

denied  that  the  tendency  of  the  minimum  wage  was  to  become 
the  maximum  also.  He  asserted  that,  whereas  in  the  clothing 
trade  in  1901  the  minimum  wage  for  adult  males  was  455.  a  week, 
the  average  paid  was  53s,6d. ;  for  adult  females,  while  the  mini- 
mum was  2os.,  the  average  was  22s.3d.  He  instanced  similar 
differences  in  the  boot,  furniture  and  shirtmaking  trades."  The 
Chief  Factory  Inspector  at  Melbourne,  in  reply  to  an  inquiry 
from  the  New  York  Factory  Investigating  Commission,  said  :* 
"It  is  frequently  asserted  in  this  State  that  the  minimum  becomes 
the  maximum,  but  our  official  figures  show  that  this  is  not  the 
case.  I  am  sending  by  separate  packet  a  book  containing  all  the 
existing  factory  laws  of  Victoria,  and  a  copy  of  my  latest  annual 
report.  If  you  will  kindly  refer  to  Appendix  B,  you  will  see 
what  the  average  wage  in  the  trade  is.  A  further  reference  to 
Appendix  D.  will  give  you  the  figures  in  any  particular  trade.  I 
regret  that  I  have  not  figures  which  will  precisely  answer  your 
question,  but  a  careful  comparison  will  show  that  the  average 
wage  in  a  trade  is  invariably  higher  than  the  minimum  wage, 
I  do  not  know  that  there  is  any  exception  to  this  in  Victoria." 

Professor  H.  R.  Seager  also  has  said  :*  "It  is  of  much  more 
significance  that  in  Victoria,  after  the  minimum  wage  system  had 
applied  to  the  clothing  industry  for  half  a  dozen  years,  the 
average  wage  for  women  was  reported  as  42s.3d.  a  week,  as 
compared  with  the  prescribed  minimum  of  365.,  and  the  average 
for  men  as  53s.6d.  as  compared  with  the  legal  minimum  of  455. 
An  average  nearly  20  per  cent  higher  than  the  minimum  is  pretty 
conclusive  evidence  that  wages  continued  to  vary  with  the  in- 
dividual capacity  of  the  workers  after  the  minima  were  pre- 
scribed as  they  had  done  before." 

Effects  on  Efficiency  and  on  Industrial  Peace. — Professor 
Hammond,  it  would  seem,  concludes  that  there  has  been  a  de- 
cline in  efficiency  among  workers  in  certain  industries  under 
wage  determinations ;  or  at  least,  he  leaves  the  question  a  mooted 
one.3  And  yet  he  says,  and  it  is  hard  to  reconcile  this  statement 
with  a  lowering  of  industrial  efficiency:  "Well-paid  workers  are 

1  Andrews,  Irene  Osgood,  "Minimum  Wage  Legislation,"  p.  62. 

2  American  Labor  Legislation  Review,  February,  1913.     "The  Theory  of 
the   Minimum    Wage."   by   H.   R.    Seager,   p.    89.      For   further   supporting 
testimony   see   Brandeis'   Appendix   to   the    Briefs    Filed   in    Behalf   of   Re- 
spondents  in   Stettler  v.   O'Hara,  in  the   Supreme  Court   of  Oregon,   1913, 
p.   179-188. 

3  Survey,   February  6,    1915.     M.   B.   Hammond,   "Where  Life   is  more 
than  Meat." 


54  PUBLIC   REGULATION    OF 

in  better  condition  and  work  more  cheerfully  than  do  those 
whose  wages  have  forced  them  to  a  low  standard  of  living." 

Replying  to  a  question  in  point,  propounded  by  the  New  York 
Factory  Investigating  Commission,  the  Chief  Inspector  of  Fac- 
tories in  Melbourne  said.1  "My  own  personal  opinion  is  that  the 
fixing  of  a  standard  wage  increases  efficiency  generally,  from  the 
fact  that  the  employer  demands  in  return  a  standard  degree  of 
efficiency.  .  .  .  To  answer  your  question  generally,  I  think  it 
can  be  truthfully  said  that  the  efficiency  of  the  workers  all  around 
is  distinctly  higher  under  the  minimum  wage  than  it  was  before." 
The  Australian  Official  Year  Book  is  authority  for  the  statement 
that  from  1901  to  191 1  the  relative  productive  activity  increased 
from  1,000  to  1,355,  or  25^2  per  cent.2  To  this  may  be  added  the 
following  testimony  of  Louis  Brandeis  and  Josephine  Goldmark.* 
"The  establishment  of  a  legal  minimum  wage  has  been  found  an 
important  incentive  to  increasing  efficiency  on  the  part  of  both 
employers  and  employees.  It  stimulates  the  employer  to  reduce 
costs  by  improvements  in  organization  and  new  inventions,  and 
also  to  develop  and  to  keep  the  most  efficient  workers.  On  the 
other  hand,  the  establishment  of  the  legal  minimum  wage  stimu- 
lates the  workers  to  prove  themselves  the  most  efficient." 

The  better  opinion  would  have  it,  too,  that  the  wage  and 
arbitration  boards  have  practically  eliminated,  or  at  least,  greatly 
reduced,  industrial  strikes  in  Australasia.  Says  Arthur  H.  Hoi- 
combe  :*  "Whatever  may  have  been  the  original  purpose  of  the 
Victorian  Wage  Boards,  their  chief  function  today  is  to  establish 
a  more  solid  foundation  for  industrial  peace.  ...  In  short,  the 
Victorian  wage  boards  serve  today  to  foster  collective  bargaining 
between  capital  and  labor  with  a  view  to  the  peaceful  conciliation 
of  industrial  disputes."  M.  B.  Hammond  says  :5  "There  are,  I 
think,  not  more  than  half  a  dozen  cases  in  which  a  strike  has 
occurred  in  a  trade  where  wages  and  hours  are  fixed  by  a  wage 
board."  Victor  S.  Clark  says  that  few,  if  any,  strikes  have  oc- 
curred where  wage  determinations  are  in  force. 

It  has  been  thought  best  not  to  make  extensive  use  of  the 
unripe  experiences  of  Great  Britain,  as  that  would  introduce  the 
disquieting  element  of  uncertainty.  Enough  should  be  said  about 

1  Irene  Osgood  Andrews,  "Minimum  Wage  Legislation,"  p.  634. 

2  Official  Year  Book  for  the  Commonwealth  of  Australia,   1913,  p.   1154. 
8  Appendix  to  Brief  Filed  in  Behalf  of  Appellants  in  Stettler  v.  O'Hara, 

in  the  Supreme  Court  of  Oregon,  1913,  p.  108. 
4  American  Economic  Review,  1912,  p.  22-23. 
6  Survey,  February  6,  1915. 
6  Victor  S.  Clark,  "The  Labor  Movement  in  Australia,"  p.  148. 


THE   RATE   OF  WAGES  55 

England's  experiences,  however,  to  show  the  tendency  of  the 
results.  The  New  York  Investigating  Commission  sent  the  fol- 
lowing questions  to  the  office  of  the  Board  of  Trade  in  London  :' 

"First:   Does  the  minimum  wage  become  the  maximum? 

"Second:   How  far  are  the  unfit  displaced  by  such  legislation? 

"Third:  Do  such  laws  tend  to  drive  industry  from  the  State? 

"Fourth:  Do  they  result  in  decreasing  efficiency?" 

The  following  reply  was  given : 

"I  am  directed  by  the  Board  of  Trade  to  say  that,  as  the 
Trade  Boards  Act  has  only  been  in  operation  for  a  comparatively 
short  period,  they  consider  that  it  is  as  yet  too  early  to  express 
a  definite  judgment  on  its  indirect  and  ultimate  results. 

"The  board  are  of  the  opinion,  however,  that  provisional 
replies,  based  on  the  experience  so  far  obtained  of  the  working 
of  the  act,  may  be  given  to  the  questions  contained  in  your  letter, 
as  follows:  (i)  The  board  are  not  aware  of  any  general  ten- 
dency among  employers  to  reduce  rates  to  the  minimum  allowed 
by  law  in  cases  where  higher  rates  have  been  paid  in  the  past. 
On  the  contrary,  there  is  reason  to  suppose  that  the  better 
organization  of  the  workers,  which  has  been  observed  to  have 
taken  place  in  the  trades  to  which  the  act  has  been  applied, 
tends  to  prevent  the  legal  minimum  rate  from  becoming  in  fact 
the  maximum.  (2)  So  far  as  the  board  are  aware,  there  has 
been  no  general  dismissal  of  workers  as  a  result  of  the  fixing  of 
minimum  rates ;  and  even  where  workers  have  been  dismissed  on 
this  account,  it  has  frequently  been  found  that  this  has  been  due 
to  misunderstanding  of  the  act  and  not  to  its  actual  provisions. 
(3)  The  board  are  not  aware  of  any  tendency  on  the  part  of 
manufacturers  to  transfer  their  business  to  foreign  countries,  or, 
in  cases  where  lower  minimum  rates  have  been  fixed  for  Ireland 
than  for  Great  Britain,  to  transfer  their  business  from  Great 
Britain  to  Ireland.  (4)  There  is  no  evidence  in  the  possession 
of  the  board  to  show  that  the  efficiency  of  workers  has  been 
reduced  as  a  result  of  the  fixing  of  minimum  rates  of  wages.  On 
the  contrary,  there  are  indications  that  in  many  cases  efficiency 
of  the  workers  has  been  increased.  The  fixing  of  minimum  rates 
has  also  resulted  in  better  organization  among  the  employers  and 
in  improvements  in  the  equipment  and  organization  of  their 
factories." 

To  this  may  be  added  a  favorable  report  by  John  A.  Hobson, 

1  Irene  Osgood  Andrews,   "Minimum  Wage  Legislation,"  p.   77. 


56      PUBLIC   REGULATION   OF   RATE   OF   WAGES 

one  of  England's  leading  economists.  Mr.  Hobson  points  out  that 
the  Trade  Boards  Act  has  been  successful  in  the  four  trades 
where  it  has  been  longest  in  operation,  namely,  in  chainmaking, 
machine-made  lace  finishing,  box-making,  and  tailoring.1 

Conclusion.  Other  aspects  of  this  phase  of  the  minimum  wage 
problem  could  be  discussed,  but  as  the  cardinal  points  have  been 
covered,  it  is  doubtful  if  further  discussion  would  influence  the 
reader  to  change  his  conclusions  one  way  or  the  other.  The 
main  purpose  of  the  discussion  has  been  to  show  that  the  plan 
to  regulate  the  rate  of  wages  by  law,  in  Australasia  and  Great 
Britain,  works;  and  that  it  has  not  proven  prejudicial  to  the 
highest  commercial  and  industrial  development  of  the  state,  but, 
on  the  contrary,  results  would  seem  to  indicate  that  it  has  materi- 
ally promoted  such  development.  What  the  results  will  be  when 
the  principle  of  regulation  is  applied  to  American  conditions  is  a 
matter  that  should  be  determined  by  experience.  Why  not  deter- 
mine the  expediency  of  regulation  in  the  simplest  and  most  effica- 
cious manner — by  giving  it  a  trial?  Why  allow  the  already 
grievous  conditions,  which  such  regulation  purposes  to  remedy,  to 
aggravate,  while  the  state  engages  its  attention  and  energy  in 
extended  and  futile  discussion?  Playing  hide  and  seek  with  the 
letter  and  the  spirit  of  the  Constitution  may  be  good  politics,  but 
it  is  poor  statesmanship. 

1  Survey,  February  6,  1916.  John  A.  Hobson,  "The  State  and  the 
Minimum  Wage  in  England." 


THE   RATE   OF   WAGES  57 


CHAPTER   IV 
A  RESUME 

The  whole  contest  over  minimum  wage  legislation  resolves 
itself  into  the  inevitable  struggle  between  the  positive  and  the 
negative  forces  of  society  over  a  proposition  to  change  the  pres- 
ent rules  of  the  game  of  life.  It  is  a  clash  between  vested  prop- 
erty rights  and  humanity — a  contest  on  the  one  hand  for  profits, 
and  on  the  other  for  a  few  crumbs  of  the  comforts  of  life. 
Labor,  grown 

".  .  .  weary  with   dragging  the   crosses 

Too  heavy  for  mortals  to  bear," 

is  praying  to  be  allowed  to  enjoy  enough  of  the  fruits  of  its 
own  toil  to  live;  and  with  the  labor  forces  stand  those  whom 
history  has  taught  that  those  who  toil  shall  inherit  the  earth,  and 
who,  therefore,  believe  that  it  is  suicidal  for  society  to  pay  its 
potential  mothers  and  fathers  less  than  a  living  wage.  Hence 
the  wage  problem  has  become  affected  with  a  public  interest. 

Unlike  England  and  Australasia,  the  United  States  do  not 
include  men  in  their  wage  determinations ;  they  draw  a  distinction 
between  male  and  female  workers1  that  will  not  stand  the  test 
of  time.  The  lowest  stratum  of  male  labor  is  little  better  organ- 
ized than  are  women  workers,  and  is  almost  as  helpless.  Also, 
the  unborn  generations  need  protection  on  the  paternal  side  as 
well  as  on  the  maternal.  And  furthermore,  a  great  many  women 
and  minors  are  in  industry  only  because  the  wages  of  their  male 
bread-winners  are  not  sufficient  for  the  support  of  the  family; 
and,  on  the  other  hand,  because  they  are  in  industry  they  are, 
by  their  competition,  forcing  the  wages  of  male  labor  still  lower 
down  the  starvation  scale.  That  the  further  step,  the  inclusion 
of  men,  will  be  taken,  should  the  courts  sustain  the  present  legis- 
lation, seems  almost  inevitable.  It  is  vain  to  hope  to  perpetuate 
the  existing  order  of  inequality  between  the  employer  and  the 
employee  by  an  appeal  to  the  Constitution — by  an  appeal  to  the 
familiar  "laissez  faire,  laissez  passer"  philosophy.2  Modern  eco- 
nomic conditions  have  forced  upon  us  a  new  philosophy  of  lib- 

iMuller  v.  Oregon,  208  U.  S.,  412;  Stettler  v.  O'Hara,  Oregon  Su- 
preme Court,  1913. 

2  That  is,  let  things  alone,  let  them  take  their  course. 


58  PUBLIC   REGULATION   OF 

eralism.  We  are  being  compelled  to  abandon  the  eighteen  cen- 
tury philosophy  of  individualism  for  that  of  collectivism.  Society 
is  becoming  more  and  more  integrated,  socialized,  and  the  inevit- 
able result  is  that  individual  action  must  be  more  and  more 
tempered  and  governed  by  due  considerations  for  the  effect  of 
such  action  upon  the  public.  Unregulated  individualism  in  indus- 
try is  untenable,  for  it  means  the  establishment  of  a  vicious  sys- 
tem of  industrial  slavery.  To  say  that  the  extension  of  the  police 
power  of  the  state  to  the  regulation  of  the  maximum  hours  of 
labor  and  the  minimum  compensation,  in  certain  industries,  is 
one  of  the  prime  functions  of  government.  Non-interference 
virtually  means  the  sanctioning  by  law  of  conditions  of  gross 
an  arbitrary  interference  with  personal  liberty,  is  a  denial  of 
inequality  between  the  employer  and  the  employee,  which  condi- 
tions are  the  very  converse  of  freedom.  Modern  freedom  does 
not  mean  license  to  exploit  one's  fellows — it  means  the  proper 
co-ordination  and  correlation  of  all  the  parts  of  the  social  ma- 
chine, so  that  social  friction  is  reduced  to  a  minimum  and  social 
efficiency  raised  to  a  maximum.  To  this  end  certain  individual 
impulses  must  be  held  in  check  by  community  action,  lest  the 
ignorance  and  the  weakness  of  the  many  be  capitalized  by  the 
few  for  their  own  personal  aggrandizement.  To  protect  society 
from  the  direful  consequences  of  such  practices,  is  the  purpose 
of  our  labor  legislation,  and  particularly  of  the  minimum  wage 
laws.  When  a  capitalist  argues  that  this  legislation  takes  his 
property  without  due  process  of  law  and  without  compensation, 
he  is  employing  the  odious  argument  of  the  Southern  slave- 
holder. Are  human  rights  less  sacred  than  property  rights? 
Furthermore,  the  experience  of  Australasia  seems  to  indicate 
that  a  minimum  wage,  instead  of  depriving  an  employer  of  any 
property,  does,  in  truth,  increase  his  profits  through  an  increased 
efficiency  of  the  employee.  The  employer  who  suffers  in  con- 
sequence of  an  enforced  payment  of  a  living  wage  is  parasitic 
and  of  questionable  social  value;  he  is  in  receipt  of  the  working 
energy  of  human  beings  at  less  than  its  cost,  and  to  that  extent 
he  is  parasitic.  The  balance  must  be  made  up  somehow.  Some- 
times it  is  paid  in  part  by  some  other  industry  which  may  be 
employing  another  member  of  the  family;  generally  part  is  paid 
by  the  worker  in  the  form  of  a  deteriorated  physique,  intelli- 
gence and  character ;  in  many  cases  the  family  or  friends  of  the 
worker  assume  part  of  the  obligation;  and  ultimately  a  part  may 


THE   RATE   OF  WAGES  59 

be  contributed  in  the  form  of  private  and  public  charity.  In 
other  words,  this  employer  is  receiving  a  subsidy  from  some 
source — a  practice  that  has  been  condemned  by  an  enlightened 
public  opinion  as  thoroughly  reprehensible,  and  let  us  hope  that 
the  time  has  come  when  the  courts  will  no  longer  permit  the 
Constitution  to  stand  between  this  social  parasite  and  the  public 
welfare. 

The  elimination  of  this  parasite  from  industry  should  be 
looked  upon  with  favor  by  the  enlightened  and  efficient  employer 
— as  is  the  case  in  Australasia.1  A  subsidized  employer,  by  ex- 
ploiting an  unlimited  amount  of  cheap  labor,  is  able  to  undercut 
the  prices  of  his  more  fair-minded  competitor  and  can  thus  carry 
on  a  vicious  cut-throat  competition  that  is  bound  to  keep  wages 
down  all  along  the  line.  If,  however,  the  labor  cost  to  this 
inefficient  or  unscrupulous  employer  is  raised  by  the  requirement 
that  he  pay  a  minimum  living  wage,  which  requirement  is  made 
standard  for  all,  it  becomes  evident  that  he  can  no  longer  under- 
cut prices  unless  he  becomes  even  more  efficient  than  his  com- 
petitors. Thus  competition  is  raised  from  the  sordid  depths  of 
wage-cutting  and  "sweating"  to  a  high  plane  of  intelligence  and 
business  efficiency. 

To  protect  the  lives,  health  and  morals  of  the  present  gener- 
ation, and  the  health  of  the  generations  yet  unborn,  is  the  avowed 
purpose  of  minimum  wage  legislation.  The  lower  stratum  of 
male  labor,  and  practically  all  female  and  child  labor,  consti- 
tute a  vast  fund  of  unorganized  and  cheap  potential  energy  from 
which  certain  industries  draw  practically  their  entire  working 
forces.  The  practice  of  the  past  has  been  to  look  upon  this  labor 
as  so  much  available  mechanical  energy  to  be  consumed  in  the 
productive  process  without  thought  for  the  fearful  physical  and 
spiritual  sacrifices  which  it  entailed.  But  an  awakened  and  stur- 
dier social  conscience  has  served  notice  upon  private  and  cor- 
porate greed  that  public  policy  will  no  longer  tolerate  a  condition 
which  invites  parasites  to  live  off  the  social  body,  or  which  makes 
it  possible  for  the  silk-gloved  hand  of  Wealth  to  pick  the  thread- 
bare pockets  of  Want. 

America  has  long  been  an  asylum  for  the  oppressed  of  other 

1  Victor  S.  Clark,  in  Bulletin  of  the  United  States  Bureau  of  Labor, 
No.  56,  p.  73,  77.  Victor  S.  Clark,  in  Bulletin  of  the  United  States  Bureau 
of  Labor,  No.  49,  p.  1231.  Philip  Snowdon,  "The  Living  Wage,"  p.  7,  8, 
147.  Louis  Brandeis,  "Appendix  to  Brief  Filed  on  behalf  of  Respondents 
in  Stettler  v.  O'Hara,  Supreme  Court  of  Oregon,  October  term,  1913,  p.  192, 
199. 


60  PUBLIC  REGULATION   OF 

lands.  We  have  been  boastful  in  advertising  our  opportunities 
and  the  unlimited  wealth  of  our  resources,  and  have  welcomed 
all  comers  to  share  our  blessings.  Yet,  in  spite  of  our  boasted 
wealth  and  opportunities,  thousands  of  children  go  hungry  to 
school  every  day;  thousands  of  children  are  daily  sent  to  our 
factories  to  be  sacrificed  upon  the  altar  of  an  insatiable  god  of 
greed;  thousands  of  girls,  and  for  sheer  want  of  the  means  of 
livelihood,  are  being  robbed,  while  yet  in  their  teens,  of  the 
bloom  of  girlhood  and  the  charms  of  womanhood,  and  thus 
doomed  to  a  loveless,  homeless  and  childless  life;  scores  of  girls 
are  daily  subjected  to  the  ignoble  choice  of  starvation,  or  suicide, 
or  shame — yes,  scores  of  them  are  being  frightened  by  the  threat- 
ening specter  of  abject  poverty  into  either  ending  it  all  in  vio- 
lence, or  into  breaking  nature's  holy  law  of  sex  by  capitalizing 
their  virtue  and  thus  poisoning  life  and  morals  at  the  very  foun- 
tain head. 

President  Wilson,  whose  heart  is  as  right  as  his  vision  is 
clear,  spoke  these  significant  words  in  his  inaugural  address: 
"We  have  been  proud  of  our  industrial  achievements,  but  we  have 
not  hitherto  stopped  thoughtfully  enough  to  count  the  human 
cost,  the  cost  of  lives  snuffed  out,  of  energies  overtaxed  and 
broken,  the  fearful  physical  and  spiritual  cost  to  men  and  women 
and  children  upon  whom  the  dead  weight  and  burden  of  it  all 
has  fallen  piteously  the  years  through.  The  groans  and  agony 
of  it  all  has  not  yet  reached  our  ears,  the  solemn,  moving  under- 
tone of  our  life,  coming  up  out  of  the  mines  and  factories  and 
out  of  every  home  where  the  struggle  had  its  intimate  and  famil- 
iar seat.  .  .  .  There  can  be  no  equality  of  opportunity,  the  first 
essential  of  justice  in  the  body  politic,  if  men  and  women  and 
children  be  not  shielded  in  their  lives,  their  very  vitality,  from 
the  consequences  of  great  industrial  and  social  processes  which 
they  cannot  alter,  control  or  singly  cope  with.  Society  must  see 
to  it  that  it  does  not  itself  crush  or  weaken  or  damage  its  own 
constituent  parts.  The  first  duty  of  law  is  to  keep  sound  the 
society  it  serves.  Sanitary  laws,  pure-food  laws,  and  laws  deter- 
mining the  conditions  of  labor  which  individuals  are  powerless 
to  determine  for  themselves  are  intimate  parts  of  the  very  busi- 
ness of  justice  and  legal  efficiency." 

One  of  the  hopeful  signs  of  the  times  is  the  fact  that  we 
are  beginning  to  hear  and  to  understand  this  "solemn  moving 
undertone  of  our  life,"  and  our  social  legislation  shows  signs  of 


THE   RATE   OF  WAGES  61 

an  earnest  desire  to  alleviate  the  dead  burden  of  misery  under 
which  our  toilers  stagger  and  groan.  The  State  is  gradually 
growing,  through  the  development  of  its  so-called  police  power, 
into  the  stature  and  dignity  of  "parens  patriae,"  guardian,  or 
custodian  of  the  public  welfare.  Honest  business  has  nothing 
to  fear  from  the  exercise  by  the  State  of  this  sovereign  obliga- 
tion ;  for  the  temper  of  our  people  is  eminently  conservative,  and, 
though  they  may  sometimes  err  in  their  choice  of  means,  their 
sober  judgment  will  not  permit  them  to  stray  far  afield  from  an 
impartial  application  of  the  strict  principles  of  equity  and  justice. 
The  business  employer  who  objects  to  the  payment  of  a  living 
wage,  I  leave  to  meditate  upon  this  solemn  thought:  "He  that 
sheddeth  blood  and  he  that  defraudeth  the  laborer  of  his  hire 
are  brothers.  The  bread  of  the  needy  is  the  life  of  the  poor; 
he  that  defraudeth  them  thereof  is  a  man  of  blood." 


APPENDIX 

AN  ANALYSIS  OF  MODERN  MINIMUM  WAGE 
LEGISLATION1 

NEW  ZEALAND 
The  Industrial  and  Conciliation  and  Arbitration  Act,  igoo.2 

The  promoter  of  the  New  Zealand  Industrial  Conciliation  and 
Arbitration  Act  was  Mr.  William  Pember  Reeves,  then  minister 
of  labor.3  The  purpose  of  the  law  was  to  settle  and  prevent 
strikes.  The  original  act  was  the  Industrial  Conciliation  and 
Arbitration  Act  of  August  31,  1894.  It  has  since  been  amended 
by  the  Acts  of  October  18,  1895,  October  17,  1896,  November  5, 
1898,  October  20,  1900,  and  November  7,  1901." 

Before  the  act  could  go  into  operation,  voluntary  societies  of 
employers  and  employees  respectively,  known  as  "industrial 
unions,"  had  to  be  organized  as  provided  by  the  act.  Now. an 
industrial  union  may  be  formed  by  the  lawful  association  and 
formal  registration  with  the  state  registrar  of  seven  or  more 
employees,  or  by  two  or  more  employers.  Two  or  more  of  these 
unions,  provided  they  are  unions  of  the  same  class  and  of  the 
same  industry,  may  form  an  "industrial  association."  These  or- 
ganized bodies  are,  for  the  purposes  of  the  act,  corporations,  and 
it  is  only  one  of  these  unions  or  associations,  or  an  individual 
employer  that  can  be  a  party  to  an  action  before  one  of  the 
boards  of  conciliation  or  the  court  of  arbitration  that  are  estab- 
lished under  authority  of  the  act;  but  the  court  of  arbitration  has 
power  to  extend  an  award  to  a  labor  union  or  an  individual 
workman  may  not  be  a  member  of  an  industrial  union. 

For  the  administration  of  the  act  the  colony  is  divided  into  a 

1  "France   enacted,   a  little   over  two   years   ago,   a  minimum   wage  law 
applicable  to   women  home  workers — and  with   some   modifications — to  men 
home   workers  on  clothing.     After  the   present  war  had  been  in  existence 
for  nearly  a  year  a  minimum  wage  regulation  was  extended  to  factory  made 
clothing,    the    extension    itself   haying   grown    out   of   military    orders    fixing 
rates  in  the  manufacture  of  certain  classes  of  soldiers'  apparel." — Marie  L. 
Obenauer,  in  Report  by  Alexander  J.  Porter,   The  National  Civic  Federa- 
tion, Sixteenth  Annual  Meeting,  Washington,  D.  C.,  January  17,  1916,  p.  31. 
"The  minimum  wage  bill  was  passed  by  the  Chamber  of  Deputies,  Novem- 
ber  13,   1913." — Bulletin  of  the    U.  S.  Bureau   of  Labor  Statistics,    Whole 
Number  167,  Minimum  Wage  Legislation  in  the  United  States  and  Foreign 
Countries,  pp.  185-186. 

2  Department  of  Labor  Bulletin,  No.  49,  p.  1282. 
8  Ibid,  p.  1186.     Victor  S.  Clark's  report. 

4  Ibid,  p.  1282.     Victor  S.  Clark's  report. 


PUBLIC   REGULATION   OF  RATE  OF  WAGES     63 

number  of  industrial  districts,1  in  each  of  which  is  established  a 
board  of  conciliation,  composed  of  two  members  chosen  by  the 
industrial  unions  of  employers  and  two  by  the  unions  of  em- 
ployees and  an  impartial  chairman  selected  by  the  four  represen- 
tative members.  In  case  the  unions  fail  to  elect  the  governor  will 
nominate  the  members  of  the  board.  Special  expert  boards  may 
be  created  for  emergency  or  extraordinary  cases.  These  boards 
have  jurisdiction  in  all  disputes  referred  to  them  by  an  indus- 
trial union,  or  an  association  of  industrial  unions,  or  by  an 
employer,  provided  the  appeal  is  agreeable  to  the  other  party  or 
parties  to  the  controversy.  The  voluntary  character  of  this  pro- 
vision is  not  significant,  however,  as  by  the  amendment  act  of 
iQOi2  either  party  may  appeal  directly  to  the  court  of  arbitration 
and  force  a  hearing  there. 

It  is  the  duty  of  the  board  to  endeavor  to  bring  about  an 
"industrial  agreement"  between  the  disputants,  which  agreement, 
when  duly  executed  by  the  parties  or  by  their  attorneys,  becomes 
binding  upon  them  and  enforceable  by  the  court  of  arbitration. 
If  an  agreement  cannot  be  reached,  the  board  embodies  its  find- 
ings in  a  "recommendation,"  which,  if  not  appealed  within  one 
month  of  record,  becomes  as  binding  upon  the  parties  as  an 
industrial  agreement  or  an  award  of  the  court. 

The  most  important  part  of  the  arbitration  machinery  is  the 
"court  of  arbitration"  to  which  reference  has  already  been  made. 
The  court  is  composed  of  three  members,  appointed  by  the  Gov- 
ernor, one  on  the  recommendation  of  the  industrial  unions  of 
workers,  one  on  the  recommendation  of  the  industrial  unions  of 
employers,  and  the  third  a  member  of  the  supreme  court  of  the 
colony  who  shall  be  the  president  of  the  court.  The  jurisdiction 
of  the  court  extends  to  practically  all  things  that  might  be  made 
a  condition  of  a  private  contract  between  an  employer  and  a 
worker.  This  court  may  make  its  awards  legally  binding  upon 
the  parties  to  a  dispute  without  their  voluntary  acceptance  of  the 
same;  it  may  extend  them  so  as  to  include  parties  not  appearing 
in  the  dispute,  and  to  labor  unions  or  an  individual  workman  who 
may  not  be  a  member  of  an  industrial  union ;  it  may  make  them 
general,  or  localize  them  at  its  discretion;  it  may  enforce  not 
only  its  own  award,  but  industrial  agreements,  and  recommenda- 
tions of  boards,  by  penalties  up  to  $2,433  in  case  of  employers  or 
industrial  or  trade  unions,  or  by  a  penalty  not  in  excess  of  $48.67 
in  case  of  individual  workmen  not  members  of  an  industrial 
union.  Within  its  sphere  of  jurisdiction,  the  court  of  arbitration 
is  supreme;  as  to  such  matters  there  lies  no  appeal  from  its 
decisions  to  the  supreme  court  of  the  colony.3 

Both  the  court  and  a  board  are  empowered  to  summon  wit- 
nesses, administer  oaths,  compel  a  hearing,  receive  evidence,  and 
preserve  order.  In  addition  the  court  may  inspect  books. 

1  Eight  in  June,  1903,  according  to  Victor  S.  Clark.     The  Governor  con- 
stitutes  the    districts    and   also    appoints   for    each    a   clerk   of   awards,   the 
ministerial  officer  of  the  board. 

2  Section  58,  Article  2,  of  the  Act. 

3  Bulletin  of  the  Bureau  of  Labor,  No.  40,  p.  1188.     Victor  S.  Clark. 


64  PUBLIC  REGULATION   OF 

Thus  New  Zealand  workmen  may  use  one  of  two  methods 
provided  by  law  for  the  legal  establishment  of  a  rate  of  wages: 
they  may  arbitrate  their  case  before  a  board  of  conciliation,  or 
they  may  appeal  directly  to  the  court  of  arbitration  for  an  equit- 
able ruling  between  themselves  and  their  employers. 

NEW  SOUTH  WALES 

In  1908,  the  Arbitration  Act  of  1899  expired,  and  a  new  Act 
was  passed,  which  was  a  compromise  between  the  Victorian  and 
the  New  Zealand  systems — it  attempted  to  graft  Wages  Boards 
upon  the  system  of  Industrial  Courts.  However,  the  principle  of 
the  Wages  Boards  was  virtually  abandoned  in  1909  by  an  amend- 
ment which  for  all  practical  purposes  converted  the  Wages 
Boards  into  Industrial  Courts.  So  the  present  law  differs  from 
the  old  Arbitration  Act  only  in  that  it  does  not  accept  the  Trade 
Union  as  the  industrial  unit,  but  allows  any  twenty  workmen  to 
apply  for  a  Wages  Board.1  There  are,  of  course,  differences  of 
detail. 

As  New  South  Wales  has  been  classed  with  New  Zealand,2 
the  above  observations  have  been  thought  of  sufficient  importance 
to  warrant  this  separate  treatment  of  New  South  Wales. 

VICTORIA  \ 
Special  Boards  Act,  1896. 

The  principle  underlying  the  Victorian  Special  Boards  Act  of 
1896  is  quite  unlike  that  of  the  New  Zealand  Industrial  Concilia- 
tion and  Arbitration  Act  of  1894.  The  Victorian  legislation  is 
aimed  directly  at  the  sweating  system  and  does  not  attempt  to 
interfere  with  trade  disputes.  The  bursting  of  the  yellow  bubble 
of  gold  speculation  in  the  last  quarter  of  the  last  century,  gave 
Victoria  her  new  problem  of  sweating.  To  her  lasting  credit, 
her  Parliament  acted  quickly  and  decisively  through  the  enact- 
ment of  the  Special  Boards  Act. 

The  Act  does  not  create  a  permanent  board,  as  do  the  Ameri- 
can laws ;  but  a  board  may  be  created  at  any  time  in  pursuance  of 
a  resolution  passed  by  both  houses  of  the  Parliament.  After 
this  resolution  has  been  adopted,  declaring  that  it  is  expedient  to 
appoint  a  Special  Board  for  a  trade  or  trades,  the  Minister  of 
Labor  may  by  notice  published  in  the  "Government  Gazette"  nom- 
inate persons  for  the  board  or  boards.  The  parties  interested  are 
privileged  to  send  lists  of  names  to  the  Minister,  from  which  he 
invariably  makes  his  selection.3  Each  Board  "shall  consist  of  not 
less  than  four  nor  more  than  ten  members  and  a  chairman,"4  and 
one-half  of  the  members  "shall  be  appointed  as  representatives 
of  employers  and  one-half  as  representatives  of  employees."5  The 

1  B.  R.  Wise,  "The  Commonwealth  of  Australia,"  p.  298-324. 

2  See  Chapter  I,  p.  22. 

8  Andrews,  Irene  Osgood,  "Minimum  Wage   Legislation,"  p.    190. 
4  The  Special  Trade  Boards  Act. 
6  Ibid. 


THE   RATE   OF   WAGES  65 

representatives  of  each  group  must  be  actual  and  bona  fide  em- 
ployers and  employees,  respectively,  or  must  have  been  so  for  six 
months  during  the  three  years  immediately  preceding  their  ap- 
pointment. Unless  at  least  one-fifth  of  the  employers  or  adult 
employees  interested  give  notice  in  writing  to  the  Minister,  within 
twenty-one  days  after  the  publication  of  the  nominations,  that 
they  object  to  the  persons  nominated  as  their  representatives,  such 
nominations  stand  for  appointment.  The  appointments  are  made 
by  the  Governor  in  Council  for  three  years,  subject  to  removal  by 
the  Governor  at  any  time.  Each  Board  nominates  some  person 
(not  of  its  own  membership)  to  be  its  chairman,  and  the  ap- 
pointment is  again  made  by  the  Governor  in  Council.  If  the 
Minister  does  not  receive  this  nomination  within  fourteen  days 
after  the  appointment  of  the  Board,  the  Governor  in  Council  may 
appoint  a  Chairman  on  the  recommendation  of  the  Minister. 

The  act  provides  that  every  Special  Board  "(a)  shall  deter- 
mine the  lowest  prices  or  rates  of  payment  payable  to  any  person 
or  persons  or  classes  of  persons  employed  in  the  process,  trade, 
business  or  occupation  specified  in  such  appointment.  Such  prices 
or  rates  of  payment  may  be  fixed  at  piece-work  prices  or  at  wage 
rates  or  both  as  the  Special  Board  thinks  fit ;  (b)  shall  determine 
the  maximum  number  of  hours  per  week  for  which  such  lowest 
wages  rates  shall  be  payable  according  to  the  nature  or  condi- 
tions of  the  work;  and  the  wages  rates  payable  for  any  shorter 
time  worked  shall  not  be  less  than  a  pro  rata  amount  of  such 
wages  rates  and  not  less  than  such  a  rate  as  may  be  fixed  for 
casual  labor;  (c)  shall  fix  a  higher  wages  rate  to  be  paid  for 
any  time  in  excess  of  the  maximum  number  of  hours  per  week 
so  fixed  and  may  fix  the  times  of  beginning  and  ending  work 
upon  each  day;  and  may  fix  a  higher  rate  to  be  paid  for  any 
hour  or  fraction  of  an  hour  outside  the  time  so  fixed;  and  may 
fix  special  rates  for  work  to  be  done  on  a  Sunday  or  public 
holiday." 

It  will  be  noticed  from  the  above  quotations  from  the  Act  that 
two  different  classes  of  overtime  can  be  fixed.  Higher  rates  are 
to  be  fixed  for  work  done  in  excess  of  the  number  of  hours  de- 
termined upon  as  the  maximum  for  a  week's  work,  and  also  for 
work  done  before  or  after  the  hours  set  for  beginning  and  ending 
each  day's  labor.  It  is  evident  that  these  two  powers  cannot  very 
well  be  exercised  independently  of  one  another;  and  it  is  found, 
in  many  trades  at  least,  that  it  is  best  to  fix  overtime  rates  only 
for  work  in  excess  of  the  established  week's  maximum.1  A 
Special  Board  may  also  prescribe  the  form  of  apprenticeship  in- 
denture to  be  used;  fix  special  rates  for  apprentices  and  im- 
provers; and,  where  it  appears  just  and  expedient,  fix  special 
wages  rates  for  aged,  infirm,  or  slow  workers. 

When  a  Board  has  agreed  upon  a  Determination,  this  is  to 
be  signed  by  the  Chairman  of  the  Board  and  published  in  the 
Government  Gazette.  The  Act  does  not  indicate,  however,  upon 

1  Andrews,  Irene  Osgood,  "Minimum  Wage  Legislation,"  p.  195. 


66  PUBLIC   REGULATION    OF 

whom  the  duty  of  gazetting  the  Determination  devolves.  In 
consequence  of  this  omission,  the  Minister  of  Labor,  whose  duty 
it  logically  is  to  gazette  the  Determinations  of  the  Board,  may 
refuse  to  assume  the  obligation,  and  he  has  done  so.  In  De- 
cember, 1911,  he  refused  to  publish  the  amended  Determination 
of  the  Hairdressers  Board,  and  when  application  was  made  to 
Mr.  Justice  Cressen  for  a  mandamus,  the  Judge  refused  the  ap- 
plication.1 The  Determination  shall  go  into  effect  after  a  date 
set  by  the  Board  (not  within  thirty  days  of  such  Determination) 
and  shall  remain  in  force  until  suspended  by  the  Governor  in 
Council,  or  amended  or  revoked  by  the  Board  itself  or  by  the 
Court  of  Industrial  Appeals.  The  Governor  in  Council  may  at 
any  time,  and  for  a  period  not  to  exceed  six  months,  suspend  the 
operation  of  a  Determination.  In  that  event  the  Board  jr. 
consider  its  Determination.  If  it  amends  it,  this  new  order  takes 
precedence  of  the  old;  if  it  refuses  to  amend,  it  notifies  the 
Minister  of  its  determination,  and  the  suspension  of  the  opera- 
tion of  the  previous  Determination  is,  by  an  order  in  Council, 
revoked. 

Two  methods  of  appeal  are  provided.  If  any  person  wishes 
to  dispute  the  validity  of  any  Determination  of  any  Special  Board, 
he  can  "apply  to  the  Supreme  Court,  upon  affidavit,  for  a  rule 
calling  upon  the  Chief  Inspector  to  show  cause  why  such  Deter- 
mination should  not  be  quashed  either  wholly  or  in  part  for  the 
illegality  thereof;  and  the  said  Court  may  make  the  said  rule 
absolute  or  discharge  it  with  or  without  costs  as  the  court  shall 
seem  meet/"2  In  the  second  place,  an  appeal  may  be  taken  to  the 
Court  of  Industrial  Appeals,  created  by  the  Act  and  composed 
of  any  one  of  the  Judges  of  the  Supreme  Court.  If  a  majority 
of  the  representatives  of  either  the  employers  or  the  employees 
on  the  Board  are  dissatisfied,  or  if  an  employer  or  group  of  em- 
ployers who  employ  at  least  twenty-five  per  cent  of  the  employees 
affected,  are  not  satisfied  with  a  Determination,-  they  may  appeal 
to  this  Court,  which  has  full  power  to  amend  or  revoke  the  De- 
termination of  the  Board,  and  its  decision  is  final  and  without 
appeal.  The  Minister  may  at  any  time,  and  without  appeal, 
refer  any  Determination  by  a  Board  to  the  Court. 

The  Special  Boards  may  summon  witnesses,  examine  records, 
books  or  payrolls  and  hold  special  investigations.  The  Chairman 
has  the  power  of  administering  the  oath  to  all  witnesses.  The 
Determinations  of  the  Special  Boards  are  enforced  by  the  Min- 
ister and  the  Factory  Inspection  Board. 

GREAT  BRTTAIH 
Trade  Boards  Act,  1009. 

The  English  minimum  wage  law,  the  Trade  Boards  Act  of 
October  20,  1009,  was  modeled  on  the  Victorian  legislation.  Its 
aim  is  to  give  relief  to  the  less  intelligent  and  unorganized  class 

1  Andrews,  Irene  Osgood,  "Minimum  Wage  Legislation,"  p.  202. 
•  The  Trade  Boards  Act. 


THE   RATE   OF  WAGES  67 

of  laborers,  as  can  be  inferred,  even  without  reading  the  Act, 
from  the  fact  that  its  two  leading  sponsors  were  the  National 
Anti-Sweating  League,  organized  in  1906,  and  the  labor  party. 

The  Act  originally  applied  to  four  trades,  ready-made  tailor- 
ing, cardboard  box  making,  the  making  of  hammered,  dollied,  or 
tommied  chain,  and  certain  processes  in  lace  making;  but  the 
Board  of  Trade  may  by  Provisional  Order  apply  it  to  any  speci- 
fied trade  if  they  are  satisfied  that  the  rate  of  wages  paid  are 
exceptionally  low,  as  compared  with  other  employments.  All 
such  Provisional  Orders  must  be  confirmed  by  Parliament. 

The  Board  of  Trade  is  empowered  to  appoint  for  each  of 
such  trades  a  Trade  Board  composed  of  an  equal  number  of  mem- 
bers representing  the  employers  and  employees  respectively 
(known  as  "representative  members"),  and  of  a  number  (less 
than  one-half  the  total  number  of  "representative  members")  of 
''appointed  members."  Women  are  eligible  as  well  as  men.  The 
Board  of  Trade  appoints  a  member  as  chairman,  and  a  secretary. 
The  Trade  Board  may  establish  district  trade  committees  con- 
sisting partly  of  members  of  the  Trade  Board  and  partly  of 
persons  representing  the  employers  or  employees  of  the  trades. 
Where  such  a  trade  committee  has  been  established,  it  is  its  duty 
to  make  reports  and  recommendations  to  the  Trade  Board,  and 
no  minimum  rate  of  wages  can  be  established  by  the  Trade 
Board  before  the  committee  has  had  an  opportunity  to  report, 
and  that  report  has  been  considered. 

Each  Trade  Board  shall  fix  for  its  trade  minimum  rates  of 
wages  for  time  work  (minimum  time-rates),  and  may  also  fix 
general  minimum  rates  of  wages  for  piecework  (general  minimum 
piece-rates),  and  these  rates  may  apply  universally  to  the  trade, 
or  only  to  any  special  process  in  the  work  of  the  trade,  or  to  any 
special  class  of  workers  in  the  trade,  or  to  any  special  area.  On 
the  application  of  any  employer  the  Board  must  fix  a  special 
minimum  piece  rate  for  any  particular  class  of  work  on  which 
he  is  engaged. 

Before  fixing  minimum  rates  for  any  trade,  the  Board  is 
required  to  give  three  months'  notice  of  the  proposed  rates,  and 
to  consider  any  objection  raised  during  that  period.  It  is  also 
required  to  give  notice  of  the  rates  finally  determined  upon  at 
the  expiration  of  the  three  months,  when  said  rates  go  into  oper- 
ation to  limited  extent,  pending  an  obligatory  order  from  the 
Board  of  Trade,  which  may  be  issued  six  months  later  and  which 
make  the  said  rates  obligatory  in  all  cases.  In  the  meantime, 
the  rates  fixed  apply  to  all  cases  of  employment  within  the 
trades,  where  a  written  contract  providing  for  a  lower  rate  does 
not  already  exist,  and  to  all  firms  engaged  on  public  contracts. 

Special  permits,  exempting  the  employment  of  aged  or  infirm 
persons  from  the  provisions  of  the  Act  making  the  minimum 
time-rate  obligatory,  may  be  issued  by  the  Trade  Board  at  its 
discretion. 

An  employer  who  pays  less  than  the  rate  fixed  by  the  Trade 
Board  and  made  obligatory  by  an  order  of  the  Board  of  Trades, 


68  PUBLIC   REGULATION   OF 

is  liable  to  a  fine  not  exceeding  twenty  pounds  ($100),  and  for 
each  day  on  which  the  offense  is  continued  after  conviction,  five 
pounds  ($25).  The  employee  who  has  not  received  the  legal 
minimum  can  also  recover  the  balance  due  him.  The  Board  of 
Trade  is  empowered  to  appoint  such  officers  as  they  think  neces- 
sary for  the  purpose  of  investigating  complaints  and  enforcing 
the  payment  of  the  minimum  rates  fixed  by  the  Trade  Boards. 
Such  officers  have  the  right  to  enter  any  factory  or  workshop,  or 
other  work  places,  at  any  reasonable  time,  and  to  inspect  books, 
etc. 

Finally,  the  appointed  members  and  secretaries  of  the  Trade 
Boards  are  professional  or  paid  officers ;  the  representative  mem- 
bers receive  compensation  only  for  expenses  incurred  in  the  per- 
formance of  their  duties. 

Coal  Mines  (Minimum  Wage}  Act,  1912 

The  Coal  Mines  Act  of  March  29,  1912,  is  a  temporary  meas- 
ure for  dealing  with  conditions  in  the  coal  mines.  It  is  provided 
in  the  Act  that  it  shall  remain  in  force  for  three  years  only, 
unless  Parliament  otherwise  provides.  This  act  marks  a  new 
departure  in  English  minimum  wage  legislation.  The  Trade 
Boards  Act  of  1909  aims  to  relieve  the  more  helpless,  the  sweated 
workers ;  this  act  embraces  all  the  coal  miners  that  elect  to  comply 
with  the  general  district  rules,  and  aims  to  alleviate  the  conditions 
that,  during  the  winter  of  1911  and  1912,  has  brought  on  so  many 
strikes  among  the  miners.1 

Under  authority  of  this  act  the  Board  of  Trade  have  sched- 
uled or  created  twenty-two  districts.  In  each  of  these  is  to  be 
established  a  joint  district  board,  comprised  of  representatives  of 
the  employers  and  employees,  with  an  independent  chairman 
appointed  by  them.  This  Board  must  be  recognized  by  the  Board 
of  Trade  before  it  can  act  under  authority  of  this  Act.  In  case 
the  parties  interested  fail  to  appoint  representatives  to  this  dis- 
trict board,  the  Board  of  Trade  may  appoint  a  person  to  act  in 
the  place  thereof ;  or,  in  case  either  the  employers  or  the  work- 
men fail  to  appoint  representatives  when  the  other  party  is  willing 
to  do  so,  the  Board  of  Trade  may  appoint  members  to  represent 
the  defaulting  party.  This  board  has  power  to  make  "district 
rules,"  which  lay  down  the  conditions  "with  respect  to  the  exclu- 
sion from  the  right  to  wages  at  the  minimum  rate  of  aged  work- 
men and  infirm  workmen  (including  workmen  partially  disabled 
by  illness  or  accident) ,  and  shall  lay  down  conditions  with  respect 
to  the  regularity  and  efficiency  of  the  work  to  be  performed  by 
the  workmen,  and  with  respect  to  the  time  for  which  a  workman 
is  to  be  paid  in  the  event  of  any  interruption  of  work  due  to  an 
emergency,  and  shall  provide  that  a  workman  shall  forfeit  the 
right  to  wages  at  the  minimum  rate  if  he  does  not  comply  with 
conditions  as  to  regularity  and  efficiency  of  work,  except  in  cases 
where  the  failure  to  comply  with  the  conditions  is  due  to  some 

1  Andrews,  Irene  Osgood,  "Minimum  Wage  Legislation,"  p.  78. 


THE  RATE  OF  WAGES  69 

cause  over  which  he  has  no  control."1  The  Board  also  fix  general 
minimum  rates  of  wages.  These  general  district  rules  and  rates 
may  apply  to  the  whole  district,  or  the  board  may  fix  special  rules 
and  rates  for  a  certain  group  or  class  of  mines  within  the  district 
if  they  deem  it  advisable.  The  board  may  vary  the  rules  and 
rates  at  any  time. 

THE  VICTORIAN  AND  THE  BRITISH  LEGISLATION** 

The  striking  difference  between  the  Victorian  and  the  British 
legislation  is  a  difference  in  completeness  or  inclusiveness.  The 
Victorian  Special  Boards  Act  is  a  scientific  unit,  and  even 
attempts  to  deal  with  contingencies  incident  to  the  administration 
thereof.  On  the  other  hand,  it  is  hard  to  see  how  one  can  read 
the  British  acts  and  escape  the  feeling  that  Parliament  felt  at  the 
time  that  the  last  word  on  minimum  wage  legislation  had  not  been 
said  and  that,  therefore,  it  were  best  to  include  in  the  acts  the 
fundamental  principle  only  and  leave  it  to  the  administrative 
officers  to  fill  in  the  details  as  the  needs  should  arise.  The  British 
acts  are  indefinite  as  to  the  constitution  of  the  boards ;  they  make 
no  provision  for  the  fixing  of  maximum  hours,  for  special  over- 
time rates,  and  for  special  rates  for  apprentices  and  improvers ; 
they  provide  for  no  orderly  method  of  gazetting  the  determina- 
tions of  the  boards,  no  orderly  legal  process  of  appeal  from  these 
determinations ;  and  the  boards  and  district  committees  are  not 
empowered  to  conduct  investigations  according  to  ordinary  judi- 
cial procedure,  but,  it  appears,  must  depend  upon  specially 
appointed  administrative  officers  for  information,  the  procuring 
of  which  requires  legal  compulsion.  All  these  matters  are  specifi- 
cally provided  for  by  the  Special  Boards  Act  of  Victoria.  Time 
alone  can  determine  the  superiority  of  either  system. 

THE  AMERICAN  LEGISLATION 

History.  Minimum  wage  legislation  in  the  United  States 
dates  from  June  4,  1912,  when  the  Massachusetts  law  was  ap- 
proved. Since  then,  ten  additional  states  have  enacted  minimum 
wage  laws,  approved  in  the  following  order:  Oregon,  February 
17,  1913  (filed  in  office  of  Secretary  of  State)  ;  Utah,  March  18, 
1913;  Washington,  March  24,  1913;  Nebraska,  April  21,  1913; 
Minnesota,  April  26,  1913 ;  Colorado,  May  14,  1913 ;  California, 
May  26,  1913;  Wisconsin,  July  31,  1914;  Kansas,  March  6,  1915; 
Arkansas,  March  20,  1915. 

Prior  to  the  Massachusetts  law,  a  resolution  providing  for  a 

1  The  Act,  Article  2. 

z  As  the  fixing  of  a  legal  rate  of  waives  under  the  New  Zealand  Con- 
ciliation and  Arbitration  Act  is  only  incident  to  the  settlement  of  disputes 
so  as  to  prevent  strikes,  and  as  the  latter  is  the  real  purpose  of  the  law, 
further  reference  is  not  made  to  it  here. 

3  Arkansas:  C.  291,  Laws  1915;  California:  C.  324,  Laws  1913;  Colorado: 
C.  no,  Laws  1913;  Kansas:  C.  275,  Laws  1915;  Massachusetts:  C.  706, 
Laws  1912;  Am'd  C's.  330,  675,  Laws,  1913;  Minnesota:  C.  547,  Laws  1912; 
Nebraska:  C.  211,  Laws  1913;  Oregon:  C.  62,  Laws  1013;  Utah:  C.  63, 
Laws  1913;  Washington:  C.  174,  Laws  1913;  Wisconsin:  C.  712,  Laws  1913. 


70  PUBLIC   REGULATION   OF 

minimum  wage  in  certain  trades  was  introduced  in  the  Nebraska 
legislature  in  February,  looo,1  but  nothing  came  of  it.  After  the 
passage  of  the  British  Trade  Board  Act,  however,  a  real  agita- 
tion for  a  similar  act  was  commenced  in  several  States  of  the 
Union,  and,  as  has  been  pointed  out,  Massachusetts  led  the  way 
in  1912. 

Titles.  Four  States,  California,  Oregon,  Washington,  and 
Kansas,  have  named  the  administrative  board  provided  in  each 
to  carry  into  effect  the  provisions  of  the  act,  the  "Industrial  Wel- 
fare Commission,"  because  these  bodies  in  these  States  are  given 
broader  powers  than  the  mere  fixing  of  minimum  rates  of  wages. 
Minnesota,  Massachusetts  and  Nebraska  use  the  title,  "Minimum 
Wage  Commission/'  and  these  commissions  have  power  to  fix 
wages  rates  only;  and  Colorado,  granting  the  same  power,  uses 
"State  Wage  Board."  Arkansas  uses  "Commission"  only.  Wis- 
consin and  Utah  use  existing  bodies:  Wisconsin  the  Industrial 
Commission,  and  Utah  the  Commissioner  of  Immigration,  Labor 
and  Statistics. 

Personnel:  Appointment,  Tenure,  Compensation.  In  all  cases 
but  one,  the  appointments  are  made  by  the  Governor,  Wisconsin 
and  Utah  alone  requiring  the  consent  of  the  Senate.  One  of  the 
women  commissioners  in  Arkansas  is  appointed  by  the  Com- 
missioner of  Labor  and  Statistics.  In  Colorado,  Minnesota, 
Nebraska  and  Utah  the  appointments  are  made  for  two  years; 
in  California,  Washington,  and  Kansas  for  four  years;  in  Mas- 
sachusetts and  Oregon,  for  three  years,  and  in  Wisconsin,  for 
six.  The  commissions  are  composed  of  from  three  to  five  mem- 
bers ;  three  in  Colorado,  Massachusetts,  Minnesota,  Wisconsin, 
Arkansas,  and  Kansas ;  four  in  Nebraska ;  and  five  in  California 
and  Washington.  One  of  the  members  must  be  a  woman  in 
California,  Colorado,  Massachusetts,  Minnesota,  Kansas,  and 
Nebraska;  in  Arkansas  two  of  the  commissioners  are  women. 
In  Minnesota,  Nebraska,  Arkansas,  Kansas,  and  Washington,  the 
Commissioner  of  Labor  is  a  member,  and  in  Utah  he  is  the  sole 
member.  In  Colorado,  Minnesota  and  Oregon  the  employers  and 
employees  must  be  represented.  In  Nebraska  the  Governor  serves 
on  the  Commission,  and  also  a  professor  in  political  science  at 
the  State  University.  In  all  other  cases  the  members  are  ordi- 
nary citizens.  In  no  case  are  annual  salaries  given,  but  all 
expenses  are  paid  by  the  State,  and  in  California  and  Massachu- 
setts $10  a  day  are  further  allowed  for  actual  service.  Secre- 
taries may  be  employed  and  their  salaries  fixed  by  the  Commis- 
sion, except  in  Colorado  and  Minnesota,  where  the  law  fixes  the 
annual  salaries  at  $1,200  and  $1,800,  respectively. 

.Industries  and  Employees  Affected.  Ifi  all  states,  except  Colo- 
rado and  Arkansas,  all  industries  employing  women  and  minors 
are  covered  by  the  respective  acts.  In  Colorado  only  manufac- 
turing and  mercantile  industries,  laundries,  hotels,  restaurants, 
and  telephone  and  telegraph  offices  are  included.  ^Arkansas 
specifically  exempts  certain  industries,  those  excluded  being  estab- 

1  Andrews,  Irene  Osgood,  "Minimum  Wage  Legislation,"  p.  8. 


THE   RATE   OF   WAGES  71 

lishments  employing  fewer  than  four  females  at  the  same  time, 
in  the  same  building,  and  at  the  same  class  of  work,  cotton  fac- 
tories, and  fruit  and  vegetable  canning  industries.  The  indus- 
tries included  under  the  operation  of  the  Arkansas  act  are  "any 
manufacturing,  mechanical  or  mercantile  establishment,  laundry, 
or  any  express  or  transportation  company"  and  hotels,  restaur- 
ants and  telephone  establishments.  In  California,  Colorado, 
Massachusetts,  Nebraska,  Oregon  and  Washington  the  persons 
affected  are  women  and  minors  under  eighteen  years  of  age; 
in  Utah,  females,  adults  and  minors  under  twenty-one  years; 
and  in  Kansas,  women,  learners,  apprentices  and  minors. 

The  Commissions  are  empowered  to  make  various  exceptions 
to  this  rule,  which  practically  put  all  women  and  minors  under 
the  operation  of  the  law,  in  the  case  of  defectives  and  learners. 
In  all  the  States,  with  the  exception  of  Utah  and  Arkansas,  the 
commissions  may  grant  special  licenses  to  physically  defective 
women,  permitting  them  to  work  for  less  than  the  established 
minimum.  In  Wisconsin  special  licenses  may  also  be  issued  to 
defective  minors.  The  Arkansas  act  makes  no  mention  of  defec- 
tives. Minnesota  alone  limits  the  number  of  defectives  that  can 
be  so  employed,  putting  the  maximum  at  ten  per  cent  of  the  total 
employees  in  any  one  establishment.  In  California  such  a  license 
is  good  only  six  months,  but  may  be  renewed  indefinitely.  Cali- 
fornia and  Colorado  make  no  provision  for  learners.  Massachu- 
setts, Nebraska  and  Oregon  have  special  rates  for  learners  and 
apprentices ;  Wisconsin  requires  that  minors  in  a  "trade  industry" 
must  be  indentures;  in  Washington  the  commission  may  permit 
the  employment  of  learners  by  granting  special  licenses  for  such 
a  period  of  time  as  the  commission  shall  determine;  the  Utah 
law  provides  that  "adult  learners  and  apprentices"  shall  not  re- 
ceive less  than  ninety  cents  per  day,  and  the  learning  period  and 
apprenticeship  shall  not  exceed  one  years ;  Arkansas  puts  the 
minimum  wage  for  "inexperienced  female  workers  or  appren- 
tices" at  $1.00  per  day;  and  in  Kansas,  minors,  learners  and 
apprentices  may  be  employed  at  lower  rates  than  adult  women 
only  by  special  license.  The  Minnesota  law  provides  that  learners 
shall  receive  a  living  wage,  same  as  regular  workers.  In  no  State 
are  the  maximum  number  of  learners  and  apprentices  fixed  by 
the  law. 

^  Powers  and  Duties  of  Commissions:  Investigation,  Determin- 
ations. In  Utah  the  Commissioner  has  no  duties  or  powers  other 
than  the  general  enforcement  of  the  Act.  In  all  other  States 
the  commissions  are  required  to  make  investigations  into  the 
conditions  of  labor  in  industries  where  women  and  minors  are 
employed,  and  are  authorized  to  fix  minimum  rates  of  wages. 
In  Arkansas  the  Commissioner  of  Labor  and  Statistics,  who  is 
a  member  of  the  commission,  or  any  person  duly  authorized  by 
him,  is  charged  with  the  enforcement  of  the  act.  The  investi- 
gation, in  all  cases,  may  be  made  on  the  initiative  of  the  commis- 
sion; and,  in  California,  also  upon  petition;1  in  Minnesota,  at 


1  No    more    definite    provision   made    in    Act. 


72  PUBLIC   REGULATION    OF 

the  request  of  one  hundred  employees  ;  In  Kansas  upon  the  request 
of  not  less  than  twenty-five  persons  engaged  in  any  occupation 
in  which  women,  minors,  learners  and  apprentices  are  employed, 
and  in  Wisconsin  upon  complaint  of  any  person  to  the  effect  that 
the  legal  rates  are  not  paid  in  any  establishment  or  industry.  In 
conducting  these  investigations,  the  commissions  have  power  to 
subpoena  witnesses,  administer  oaths,  and  examine  books,  records, 
etc.  In  California,  Wisconsin,  Kansas  and  Arkansas,  they  have 
the  additional  right  to  enter  the  premises  of  the  establishment 
investigated  for  the  purposes  of  their  investigation. 

Besides  being  authorized  to  determine  minimum  rates  of 
wages,  the  Washington  commission  may  fix  standard  conditions 
of  labor;  the  commissions  of  California,  Oregon,  Kansas,  and 
Wisconsin,  conditions  of  labor  and  maximum  hours ;  the  com- 
mission of  Arkansas  may  establish  "regulations  governing  the 
employment  of  females  in  hotels,  restaurants  and  telephone 
establishments."  During  strikes  and  lockouts  they  may,  except 
in  California,  Arkansas,  and  Kansas  act  as  boards  of  arbitration. 
In  all  the  States,  with  the  exception  of  Colorado  and  Arkansas, 
they  are  further  empowered  to  enforce  all  wage  rulings;  and  in 
most  of  the  States,  barring  only  Colorado,  California,  Arkansas 
and  Washington,  they  may  enforce  all  other  rulings  made  in  pur- 
suance of  the  acts.  The  Minnesota  Act  provides  that  the  com- 
mission, and  the  Utah  and  Arkansas  acts  that  the  Commissioner 
of  Labor,  shall  have  charge  of  the  enforcement  of  the  provisions 
of  the  act. 

Methods  and  Principles  of  Wage  Determination.  There  are 
three  methods  of  determining  wage  rates  in  the  United  States : 
by  fixing  the  rates  in  the  law  itself,  as  in  Utah  and  Arkansas;  by 
a  special  commission,  as  in  Colorado ;  and  by  a  special  commis- 
sion aided  by  a  special  subordinate  board,  as  adopted  by  the  eight 
other  States. 

The  standard  or  principle  governing  the  wage  determination 
is  "a  living  wage,"  defined  by  the  several  acts  as  follows  :J 
in  California  and  Arkansas,  the  "necessary  cost  of  proper  living 
and  to  maintain  the  health  and  welfare" ;  in  Oregon  and  Wash- 
ington, the  "necessary  cost  of  living  and  to  maintain  the  workers 
in  health" ;  in  Colorado,  wages  "adequate  to  supply  the  necessary 
cost  of  living,  maintain  them  in  health,  and  supply  the  necessary 
comforts  of  life";  in  Massachusetts,  Kansas  and  Nebraska,  wages 
"adequate  to  supply  the  necessary  cost  of  living  and  to  maintain 
the  worker  in  health" ;  in  Minnesota,  "wages  sufficient  to  maintain 
the  worker  in  health  and  supply  him  with  the  necessary  comforts 
of  reasonable  life" ;  in  Wisconsin,  "a  wage  sufficient  to  maintain 
himself  or  herself  under  conditions  consistent  with  his  or  her 
welfare." 

Minimum  wages  rates  may  apply  either  to  time  or  piece  work, 
and  in  Minnesota,  Oregon  and  Kansas  orders  may  be  issued  for 
a  given  locality  or  area. 

1  The  Utah  Act  fixes  the  rates  for  experienced  adults  at  $1.25  a  day. 


THE   RATE   OF .  V/AGJES  <:\"v     v3- 

Penalties.  Penalties  are  provided  for  by  the  several  acts  for 
any  employer  who  violates  any  of  the  determinations  of  a  com- 
mission, or  any  provisions  of  the  act.1  The  penalties  differ  in 
the  different  States.  In  Massachusetts  the  commission  may  pub- 
lish the  names  of  the  offenders  in  the  newspapers,  and  any  news- 
paper that  refuses  to  publish  the  names  is  subject  to  a  fine  of 
$100;  in  Nebraska  the  commission  must  publish  the  names,  and 
the  newspapers  are  subject  to  the  same  penalty  as  in  Massachu- 
setts; in  California  the  minimum  fine  is  $50  or  imprisonment  for 
thirty  days,  or  both;  in  Colorado,  the  maximum  fine  is  $100  or 
imprisonment  for  three  months,  or  both ;  in  Minnesota,  $10  to 
$50  for  each  offense,  or  imprisonment  for  ten  to  sixty  days;  in 
Oregon,  $25  to  $iop  or  imprisonment  for  from  ten  days  to  three 
months,  or  both;  in  Washington,  Arkansas  and  Kansas,  $25  to 

fornia. 

$100  fine;  in  Wisconsin,  $10  to  $100  fine  for  each  offense;  and 
in  Utah  it  is  a  misdemeanor,  subject  to  the  ordinary  penalties 
at  law. 

In  California,  Colorado,  Minnesota,  Oregon,  Kansas  and 
Washington,  the  employee  who  has  not  been  receiving  the  legal 
wage  can  recover  from  the  employer  the  balance  due  him  or  her. 

Different  penalties  are  provided  by  most  of  our  States  for 
employers  who  discharge  or  otherwise  discriminate  against  em- 
ployees because  such  employees  have  testified,  or  are  about  to 
testify  before  a  commission.  California  makes  this  offense  a 
misdemeanor;  Colorado,  Nebraska,  and  Wisconsin  make  each 
offense  punishable  by  a  fine  of  $25 ;  Washington,  Oregon,  and 
Kansas,  $25  to  $100;  Massachusetts  $200  to  $1,000,  and  Minne- 
sota fixes  the  same  penalty  as  for  a  violation  of  the  other  pro- 
visions of  the  act. 

Court  Review:  Minnesota,  Arkansas  and  Utah,  alone,  do  not 
provide  for  an  appeal  from  the  rulings  of  the  commission  to 
some  judicial  tribunal.  Appeals  may  be  taken  as  follows:  in 
California  and  Washington,  to  the  Superior  Court,  and  on  ques- 
tions of  law  only,2  in  Oregon  and  Wisconsin,  to  the  circuit  court, 
on  questions  of  law  only;  in  Nebraska  and  Kansas  to  the  district 
court,  on  a  general  demurrer  to  the  ruling,  and  a  further  appeal 
from  the  district  court  to  the  supreme  court  of  the  State  lies 
in  Kansas ;  in  Colorado,  to  the  district  court,  on  questions  of  law 
only;  and  in  Massachusetts,  to  the  supreme  judicial  court  or  to 
the  superior  court. 

Generally  the  courts  may  set  aside  the  rulings  of  the  commis- 
sions on  such  grounds  only  as  are  provided  for  in  the  several 
acts.  This  may  be  done  in  Colorado  and  Wisconsin  if  the  ruling 
is  found  to  be  unlawful  and  unreasonable;  in  California,  if  the 
commission  acted  without  or  in  excess  of  its  powers,  or  if  the 
determination  was  procured  by  fraud;  in  Massachusetts  if  com- 

1  The  penalty   attaches   only   to  a  violation   of   the  wage   ruling  in   Cali- 
fornia. 

2  That    is,    there    is    no    appeal    from    the    commission's    decision    upon 
questions  of  fact. 


74    ,  ?LT,LIO   REGULATION   OF   RATE   OF   WAGES 


pliance  with  the  ruling  would  prevent  a  "reasonable  profit"  ;  and 
in  Nebraska,  if  compliance  "is  likely  to  endanger  the  prosperity 
of  the  business." 

Advisory  Boards:  Each  act,  the  acts  of  Colorado,  Arkansas 
and  Utah  excepted,  provides  for  the  establishment  by  the  respec- 
tive commissions  of  an  advisory  wage  board.  Action  on  the  part 
of  the  commissions  is  mandatory  in  Wisconsin,  Nebraska,  Kan- 
sas and  Massachusetts,  and  optional  in  California,  Minnesota, 
Oregon  and  Washington.  The  California  "wage  board"  is  to  be 
composed  of  an  equal  number  of  representatives  of  employers 
and  employees,  and  a  representative  of  the  commissions;  the 
Kansas  "board"  of  not  less  than  three  representatives  of  employ- 
ers, an  equal  number  representing  the  employees,  and  one  or  more 
(disinterested  persons  appointed  by  the  commission  to  represent 
the  public;  the  Massachusetts  "wage  board"  of  at  least  six  repre- 
sentatives of  employers  and  six  of  the  employees  and  one  or  more 
of  the  public;  the  Minnesota  "advisory  board"  of  from  three  to 
ten  representatives  of  employers  and  an  equal  number  of  employ- 
ees, and  one  or  more  of  the  public,  and  at  least  one-fifth  of  the 
membership  shall  be  women  ;  the  Nebraska  "wage  board"  of  at 
least  three  representatives  of  employers,  three  of  the  employees, 
and  the  three  appointed  members  of  the  commission  ;  the  Oregon 
"conference"  of  not  more  than  three  representatives  of  employ- 
ers, three  of  employees,  three  of  the  public,  and  one  or  more 
commissioners;  the  Washington  "conference"  of  an  equal  num- 
ber of  representatives  of  employers  and  employees,  and  one  or 
more  of  the  public  ;  and  the  Wisconsin  "advisory  wage  board" 
so  constituted  as  to  fairly  "represent  employers,  employees  and 
the  public."  These  boards  receive  no  compensation  in  Wisconsin, 
Washington,  Oregon  and  Minnesota.  They  receive  five  dollars 
a  day  and  expenses  in  California;  the  same  rate  as  jurors  in 
Massachusetts;  and  in  Nebraska  and  Kansas,  the  same  as  jurors 
in  the  district  court. 


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